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Section 164 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Section 120B in The Indian Penal Code
Section 302 in The Indian Penal Code
Section 34 in The Indian Penal Code

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Delhi District Court
State vs Unknown on 19 August, 2017

IN THE COURT OF SHRI KULDEEP NARAYAN


ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI

SC No.57328/16
FIR No. 153/13
U/s. 302/114/201/120B/34 IPC
P.S Ranjit Nagar

In the matter of :

State

versus

1. Sher Khan
S/o Mohd. Jamal Master
R/o Jhuggi No.A-386, Bihari
Camp, Kathputli Colony,
New Patel Nagar, Delhi.
Permanent address:
Village Jorpura, PS Tajpur
District Samasti Pur, Bihar.

2. Farid @ Bhutwa
S/o Mohd. Abdul Gafur
R/o Jhuggi No. E-445, Bihari
Camp, Kathputli Colony,
Delhi.
Permanent Address:
Village Madhopuri, PS Behra,
District Darbhanga, Bihar.

3. Md. Raza
S/o Mohd. Abdul Gafur

Sessions Case No. 57328/16 Page 1/113


Jhuggi No. E-445, Bihari
Camp, Kathputli Colony,
Delhi.
Permanent Address:
Village Madhopuri, PS Behra,
District Darbhanga, Bihar.

Date of Institution : 30-10-2013


Date of reserving Judgment : 11-08-2017
Date of pronouncement : 19-08-2017

Appearances
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor.

For the Accused persons : Shri Praveen Dabas, Advocate.

JUDGMENT

Accused persons namely, Sher Khan son of Mohd. Jamal Master, aged 21 years,Farid @ Bhutwa
son of Mohd. Abdul Gafur aged 35 years and Mohd. Raza son of Mohd. Abdul Gafur, aged about
18 years 5 months were sent up for trial on the basis of report under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C) submitted on 19.10.2013 upon conclusion of investigation into
First Information Report (FIR) no. 153/2013 of police station (PS) Ranjit Nagar for the offences
Sessions Case No. 57328/16 Page 2/113 punishable under Sections 302/114/201/120B/34 of the
Indian Panel Code, 1860 (IPC).
Prosecution Version
2. According to the prosecution story, vide DD No. 8A dated 19.07.2013, an information regarding
two dead bodies lying under Shadipur flyover, was received. A copy of above DD entry, was handed
over to SI Sumit Kumar through Ct. Rajbir and accordingly, SI Sumit Kumar alongwith Ct. Kirori
Mal and Ct. Rajbir reached at the place of occurrence i.e. under Shadipur flyover where they found
two male dead bodies lying near the railway lines. Neither any eye witness nor the person, who
made call to the PCR could be met on the spot. Both the deceased persons were identified by one
Mohd. Moti S/o Amirul Hasan R/o A-235, Bihari Camp, Kathputli Colony, Delhi as his son Mehtab
@ Dhanne and Noor Alam @ Gaira as his relative. There were injuries on the head, face and
stomach of deceased Mehtab @ Dhanne and blood was oozing out of right ear while deceased Noor
Alam had injuries on his head and left leg. There were dragging marks on the grass near the dead
bodies, giving rise to suspicion that both the deceased Sessions Case No. 57328/16 Page 3/113
persons had been murdered somewhere else and later on, their dead bodies were brought at the
place of incident. Two red coloured slippers and one grey coloured slipper were also found lying
near the battery boxes of Railway on the spot.
3. After sometime on being informed, SHO, other senior police officials, crime team, photographer
as well as dog squad team also reached at the spot. The place of incident was got inspected and
photographed by the crime team. Both the dead bodies were sent to DDU hospital for postmortem
examination through constable Kirori Mal. SI Sumit Kumar got the FIR no. 153/2013 under Section
302 IPC registered by sending Tehrir through Ct. Rajbir Singh. After registration of the FIR, further
investigation was handed over to Inspector Arjun Singh, the Investigating Officer (IO). During
further investigation, site plan was prepared by the IO and exhibits were lifted from the place of
incident and were seized. Inquest papers were prepared and on 20.07.2013, postmortem
examination of both the deceased persons was got conducted. The Viscera, blood stained clothes
and blood sample of both the Sessions Case No. 57328/16 Page 4/113 deceased persons were
preserved by the doctors for further examinations. After postmortem examination, both the dead
bodies were handed over to their relatives.
4. Further, I.O recorded the statements of father, mother and wife of deceased Mehtab @ Dhanne as
well as mother and brother of deceased Noor Alam @ Gaira whereby it was revealed that one day
prior to Holi festival in the year 2013, a quarrel had taken place between deceased Mehtab @
Dhanne and one Khurshid, brother of accused Sher Khan on the issue of chewing Gutkha. During
the said quarrel, accused Sher Khan and accused Farid @ Bhutwa (relative of accused Sher Khan)
had beaten Mehtab @ Dhanne (deceased). Later on, due to the intervention of local residents, the
matter was got compromised between both the parties in the police station. However, at that time
accused Farid @ Bhutwa had threatened Mehtab @ Dhanne (deceased) to face dire consequences.
5. During the course of investigation, when the search for accused Sher Khan and accused Farid @
Bhutwa was being made, two persons namely, Chhote Lal S/o Sattan Mahto and Danish @ Dillagi
Sessions Case No. 57328/16 Page 5/113 residing in the jhuggi of Sher Khan were traced and
interrogated. Chhote Lal and Danish @ Dillagi disclosed that both of them alongwith Kalim,
Suresh, Mohd. Munir @ Pappu, Mustafa, Imran, Khursheed and Shahid used to reside in the jhuggi
of accused Sher Khan. In the intervening night of 18/19.07.2013, when all of them were about to
sleep, they had seen accused Farid @ Bhutwa with 3 unknown persons outside the gali near the
jhuggi. At about 11 p.m-12 midnight accused Farid @ Bhutwa and those three unknown persons
had entered the jhuggi dragging and beating Mehtab @ Dhanne and Noor Alam @ Gaira. Door of
the jhuggi was closed and all of them started beating both Mehtab @ Dhanne and Noor Alam @
Gaira mercilessly with fists and blows and when both of them fell on the ground, accused Farid @
Bhutwa and his associates assaulted both of them with rods and knives, which were kept in a
blanket. Mehtab @ Dhanne and Noor Alam @ Gaira died on the spot. Thereafter, accused Farid @
Bhutwa and his associates wrapped both the dead bodies in the said blanket and took them away.
They had threatened them to Sessions Case No. 57328/16 Page 6/113 remain quiet and to clean the
place. Accused Sher Khan also instructed to clean the jhuggi.
6. During further investigation of the case, on 23.07.2013 on a secret information, accused Sher
Khan was apprehended near Shadipur flyover at Moti Nagar Industrial Area side. On interrogation,
accused Sher Khan revealed that a quarrel had taken place between Mehtab @ Dhanne and his
brother Khursheed one day prior to Holi festival. In that quarrel, accused Farid @ Bhutwa was also
hit by Mehtab @ Dhanne and for taking revenge of the same, accused Farid @ Bhutwa had made a
plan and involved accused Sher Khan in the same. Accused Sher Khan further told that on
18.07.2013 at about 11 p.m-12 midnight, Farid @ Bhutwa alongwith his 2-3 associates came to the
jhuggi of accused Sher Khan dragging and beating Mehtab @ Dhanne and Noor Alam @ Gaira. All
of them had beaten Mehtab @ Dhanne and Noor Alam @ Gaira mercilessly with fists and blows
and assaulted them with rods and knives. Both Mehtab @ Dhanne and Noor Alam @ Gaira died on
the spot and thereafter accused Farid @ Bhutwa and Sessions Case No. 57328/16 Page 7/113 his
associates wrapped the dead bodies in the blankets and took them away.
7. On the basis of his disclosure statement and sufficient evidence, accused Sher Khan was arrested
and Sections 114/120B IPC were also added to the FIR of the present case. On 24.07.2013, accused
Sher Khan was sent to judicial custody and statements of eye witnesses namely Chhote Lal and
Danish @ Dillagi were got recorded under Section 164 Cr.P.C.
8. Further on 02.08.2013, on a secret information, accused Farid @ Bhutwa was apprehended from
Satya Park, Naraina Road, Delhi. On interrogation, he disclosed the same facts as disclosed by
accused Sher Khan except the fact about his associates. Accused Farid @ Bhutwa also disclosed
about the involvement of his brother Mohd. Raza, his brother-in-law Feroz and Irshad (brother of
Sher Khan). He also disclosed the fact of informing the police through his mobile number
9899619179 in the next morning just to show sympathy to the family members of both the deceased
persons, but ran away from there when the dog squad arrived. Hence, accused Farid @ Sessions
Case No. 57328/16 Page 8/113 Bhutwa was also arrested in the present case. At his instance,
weapon of offence i.e. one iron pipe having blood stains was recovered by the IO from the bank of a
drain under Shadipur flyover.
9. During the course of investigation, eye witnesses namely, Chhote Lal and Danish @ Dillage were
examined again wherein they disclosed that Mohd. Raza, Irshad and Feroz were also involved in the
commission of the present offences.
10. On 03.08.2013, on another secret information, accused Mohd. Raza was apprehended from
railway track under Shadipur flyover. He had also disclosed the same facts as disclosed by accused
Farid @ Bhutwa. He had also disclosed about throwing the iron rod used in commission of the
offence, under the Shadipur flyover in the garbage. Accused Mohd. Raza was also arrested in the
present case. Disclouser statement of accused Mohd. Raza was recorded and at his instance, weapon
of offence i.e. one iron pipe having blood stains was recovered from garbage under Shadipur
flyover opposite DMS premises.
Sessions Case No. 57328/16 Page 9/113
11. Efforts were made to arrest remaining two co-accused namely, Irshad and Feroz, but they could
not be arrested and were absconding.
12. Further, the postmortem examination reports of deceased Mehtab @ Dhanne and deceased Noor
Alam @ Gaira were obtained. According to the postmortem examination report of Mehtab @
Dhanne (deceased), he had sustained four external injuries and the cause of death was opined as
hemorrhagic shock caused by laceration of multiple vital organs as a result of compression of chest
and abdominal part by exerting hard and heavy force upon the affected parts. The manner of death
was opined to be homicidal. According to the postmortem examination report of Noor Alam @
Gaira (deceased), he had sustained five external injuries and cause of death was opined to be
hemorrhagic shock caused by laceration of multiple vital organs as a result of compression of chest
and abdominal part by exerting hard and heavy force upon the affected parts. The manner of death
was opined as homicidal.
13. After concluding the investigation, the I.O came to a conclusion that sufficient evidence were
Sessions Case No. 57328/16 Page 10/113 collected against the accused persons qua commission of
offences under Section 302/114/201/120B/34 IPC and thereafter, he prepared chargesheet and filed
in the court on 19.10.2013.
14. On the basis of charge-sheet and the documents submitted with it, the learned Additional Chief
Metropolitan Magistrate (West), Tis Hazari Courts took cognizance of offences under Section
302/114/201/120-B/34 IPC and after complying with the provisions contained in Section 207
Cr.P.C, vide order dated 26.10.2013 committed the case to the Court of Session for 30.10.2013.
15. During the course of proceedings before farming of charge against the accused persons, to
ascertain the age of accused Sher Khan, Amina Khatoon, mother of accused Sher Khan (CW-1),
Shri Sunil Kumar, Block Statistical Supervisor (CW-1A), Mohd. Jamal, father of accused Sher
Khan (CW-2) and Dr. Rakesh Kumar, Chairperson of Age Determination Board, DDU hospital
were examined by the court. Vide order dated 11-7-
Sessions Case No. 57328/16 Page 11/113 2014, accused Sherkhan was held not to be juvenile on
the date of offence.
Charge
16. On 06.08.2014, after hearing the learned Additional Public Prosecutor for the State and the
counsel for the accused persons, charge was framed against the accused persons namely, Sher Khan,
Farid @ Bhutwa and Mohd. Raza for commission of offences punishable under Section
302/201/120B/34 IPC. The charge so framed was read over and explained to the accused persons to
which they all pleaded not guilty and claimed trial. Prosecution Witnesses
17. To bring home the afore-mentioned charges to the accused persons, the prosecution got
examined SI Sumit Kumar (PW-1), Smt. Akbari Khatoon (PW-2), HC Tara Chand (PW-3), SI
Pankaj (PW-4), Shri Narpat @ Chhotu (PW-5), Razina Khatoon (PW-6), Parveen Khatoon (PW-7),
HC Sube Singh (PW-8), HC Pratap Singh (PW-9), Mohd. Mushtaq (PW-10), Shri Chhote Lal (PW-
11), Shri Danish @ Dillagi (PW-12), Ct. Bijender Singh (PW-13), Shri Sunil Kumar Sharma,
learned MM (PW-14), Mohd. Moti (PW-15), Dr. B.N Sessions Case No. 57328/16 Page 12/113
Mishra (PW-16), Shri Barbar Ali (PW-17), Inspector Mahesh Kumar (PW-18), ASI Jai Chand (PW-
19), Ct. Sukhbir Singh (PW-20), HC Surender (PW-21), Ct. Chander Bhan (PW-22), Shri Israr
Babu (PW-23), SI Amit Tyagi (PW-24), Ct. Rajbir Panwar (PW-25), Ct. Ravinder Kumar (PW-26),
SI Harpal (PW-27), Ct. Kirori Mal (PW-28), Shri Amit Rawat (PW-29), Shri Indresh Kumar Mishra
(PW-
30), SI Harish Chander Pathak (PW-31), HC Kuldeep (PW-32) and Inspector Arjun Singh (PW-
33).
Documentary Evidence
18. The prosecution also relied on following documents, tendered into evidence i.eTrue copy of DD
entry no. 8A dt. 19/07/2013 (Ex.PW- 1/A),Rukka (Ex.PW-1/B),Site plan of the place of occurrence
(Ex.PW-1/C),Seizure memo of blood stained earth, earth control without blood from the earth and
two pairs of hawai chappals lifted from the spot (Ex.PW-1/D),Seizure memo of cash amount of Rs.
135/-, one mobile phone make Micromax alongwith SIM found from the search of Noor Alam @
Gaira (deceased) (Ex.PW-1/E), Seizure memo of exhibits (Ex.PW-1/F),A pair of Sessions Case No.
57328/16 Page 13/113 red colour chappals having black strip (Ex.P-1) (colly),A pair of grey colour
chappals (Ex.P-2) (colly), 22 negatives of the photographs of the spot including dead bodies from
different angles (Ex.PW-3/A-1 to Ex.PW-3/A-22), Photographs of the spot (Ex.PW-3/B-1 to
Ex.PW-3/B-22),Mobile crime team report (Ex.PW-4/A), One blood stained shirt of light pink colour
checkered, one blood stained pant of dark brown/ blackish colour with belt, one blood-stained
baniyan of deceased Mehtab (Ex.P-1) (colly), one blood stained blue colour jeans, blood stained
white colour shirt having check designing on collar and cuffs and one blood stained under wear
worn by Noor Alam (Ex.P-2) (colly),Statement u/s 161 Cr.P.C (Ex.PW-7/A), Copy of FIR (Ex.PW-
9/A), endorsement on the rukka regarding the registration of the present FIR (Ex.PW-
9/B),certificate U/s 65 B Indian Evidence Act (Ex.PW-9/C), copy of Roznamcha bearing DD no. 12
A dt. 19.07.2013 qua the registration of the FIR (Ex.PW-9/D),Statement before the Magistrate
(Ex.PW-1/A), Statement before the Magistrate (Ex.PW-12/A), confrontation with the statement u/s
161 Cr.P.C (Ex.PW-12/B), Sessions Case No. 57328/16 Page 14/113 confrontation with the
statement U/s 161 Cr.P.C (Ex.PW-12/C), application for recording statement U/s 164 Cr.P.C of
Chotey Lal and Md. Danish @ Dillagi (Ex.PW-14/A), application for supply of copies of statements
of both the said witnesses (Ex.PW-14/B), Identification of dead body of deceased Mehtab (Ex.PW-
15/A), identification of dead body of deceased Noor Alam (Ex.PW-15/B), receipt of above said
dead body of both the deceased persons (Ex.PW-15/C),Postmortem report no. 974/13 of deceased
Mehtab (running into five pages) (Ex.PW-16/A), postmortem report no. 975/13 of deceased Noor
Alam (running into 5 pages) (Ex.PW-16/B), subsequent opinion (Ex.PW- 16/DA), identification of
dead body of Noor Alam (Ex.PW-17/A), scaled site plan of the spot (Ex.PW- 18/A), copy of DD no.
32 A (Ex.PW-19/A), copy of DD no. 7B (Ex.PW-19/B), copy of entry at serial no. 533 in register
no. 19 (running into two pages) (Ex.PW-21/A), Copy of entry at serial no. 534 in register no. 19
(running into three pages) (Ex.PW- 21/B), Copy of entry at serial no. 536 in register no. 19 (running
into two pages) (Ex.PW-21/C), Copy of entry at serial no. 542, in register no. 19 (running Sessions
Case No. 57328/16 Page 15/113 into two pages) (Ex.PW-21/D), copy of entry at serial no. 543, in
register no. 19 (running into two pages) (Ex.PW-21/E), photocopy of RC no. 74/21/13 in register
no.21(Ex.PW-21/F),photocopy of RC no. 89/21/13 in register no. 21 (running into two pages)
(Ex.PW-21/G), Photocopy of RC no. 88/21/13 in register no. 21 (Ex.PW-21/H), attested photocopy
of customer application form of mobile no. 9899619179 issued by Md. Mustaq (Ex.PW- 23/A),
photocopy of driving license attached to the customer application form (Ex.PW-23/B), attested
photocopy of call detail record of above mentioned mobile phone for the period of 15.07.13 to
20.07.13 (Ex.PW-23/C), Certificate U/s 65-B Indian Evidence Act in respect of the CDR of the
aforesaid mobile phone (Ex.PW-23/D), seizure memo of gunny bag (Ex.PW-24/A), Brick pieces,
cemented material andsandy material (Ex.P-5) (colly), pointing out memo of accused Sher Khan
(Ex.PW- 26/A), arrest memo of accused Sher Khan (Ex.PW- 26/B), personal search memo of
accused Sher Khan (Ex.PW-26/C), disclosure statement of accused Sher Khan (Ex.PW-26/D), arrest
memo of accused Farid @ Bhutwa (Ex.PW-26/E), personal search Sessions Case No. 57328/16
Page 16/113 memo of accused Farid @ Bhutwa (Ex.PW-26/F), disclosure statement of accused
Farid @ Bhutwa (Ex.PW-26/G), pointing out memo of accused Farid @ Bhutwa (Ex.PW-26/H),
seizure memo of one pipe (Ex.PW-26/I), arrest memo of accused Raza (Ex.PW-27/A), personal
search memo of accused Raza (Ex.PW-27/B), disclosure statement of accused Raza (Ex.PW-27/C),
pointing out memo of accused Raza (Ex.PW-27/D), seizure memo of pipe (Ex.PW-27/E),
identification of iron pipe recovered at the instance of accused Farid @ Bhutwa (Ex.P-
3), Identification of iron pipe recovered at the instance of accused Raza (Ex.P-4), viscera
examination report (Ex.PW-29/A), detailed biological report (Ex.PW-30/A), detailed serological
report (Ex.PW-30/B), computerized copy of PCR form (Ex.PW-31/A), certificate U/s 65 B Indian
Evidence Act (Ex.PW-31/B), confronted with the statement (Ex.PW-32/DA), inquest form no. 25.35
(1) (b) for deceased Mehtab @ Dhanne (Ex.PW-33/A), Request letter for postmortem of the dead
body of deceased Mohd. Nabi (Ex.PW- 33/B), identification of the dead body of Noor Alam by
Mohd. Nabi (Ex.PW-33/C), inquest form Sessions Case No. 57328/16 Page 17/113 no. 25.35 (1) (b)
for deceased Noor Alam (Ex.PW- 33/D), request letter for postmortem of the dead body of deceased
Noor Alam (Ex.PW-33/E), site plan of the jhuggi (Ex.PW-33/F), carbon copy of application for
recording of statement U/s 164 Cr.P.C (Ex.PW-33/G), carbon copy of application for obtaining the
copy of the statements recorded U/s 164 Cr.P.C (Ex.PW-33/H), certified copy of the statement of
witness Chotey Lal (Ex.PW-33/J), certified copy of the statement of witness Mohd. Danish @
Dillagi (Ex.PW-33/K), application written to FSL, Rohini for inspection of the crime spot (Ex.PW-
33/L), site plan of the place of recovery of the iron pipe at the instance of accused Farid @ Bhutwa
(Ex.PW-33/M), site plan of the place of recovery of the iron pipe (Ex.PW-33/N), request letter for
subsequent opinion (Ex.PW- 33/O), copy of the forwarding letters to the FSL for chemical &
biological examination respectively (Ex.PW-33/P and Ex.PW-33/Q), request letter to the Nodal
Officer, Vodafone to provide the copy of the customer application form and call detail record from
15.07.13 to 20.07.13 of the mobile phone no. 3899619179 (Ex.PW-33/R), above said documents
Sessions Case No. 57328/16 Page 18/113 which were received from the Nodal Officer of Vodafone
(Ex.PW-33/X) (colly), identification of blood stained earth control (Mark P-6), identification of
earth control (Mark P-7), identification of blood stained earth control (Mark P-8) and identification
of earth control (Mark P-9) Statement of Accused
19. After conclusion of prosecution evidence, on 11.04.2017, statements of accused persons under
Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating
circumstances appearing in the evidence against them and stated that they were falsely implicated in
the present case.
20. Accused Sherkhan denied his involvement in any quarrel between Mehtab @ Dhanne and
Khurshid one day prior to Holi festival in the year,2013. He further stated that there was a quarrel
between Noor Alam @ Gaira and Khurshid, however, he was not present at the spot as he was on
his duty in Moti Nagar.
21. Accused Farid @ Bhutwa stated that he never had a quarrel with the deceased persons at
Sessions Case No. 57328/16 Page 19/113 any point of time and had no concern with the deceased
persons. He also stated that he had made a call to the police when the dead bodies were found near
railway line, however, he denied that he had run away from the spot when the dog squad had
arrived. He further stated that both Danish @ Dillagi and Chhotey Lal were tortured and pressurised
to falsely implicate him in the present case. He denied about the recovery of any iron pipe at his
instance. He further stated that the family members of the deceased persons used to demand money
from him and his family and falsely deposed against him in the present case when no money was
paid to them.
22. Accused Mohd Raza stated that he was falsely arrested by the police and his signatures were
obtained on some blank papers in the police station. He denied about recovery of any iron pipe at
his instance.
23. None of the accused persons desired to lead evidence in his defence and accordingly, case was
listed for final arguments.
Final Arguments Sessions Case No. 57328/16 Page 20/113
24. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for
the State and Shri Parveen Dabas, learned Counsel for accused persons. I also perused the entire
material available on record.
25. During the course of arguments, learned Additional Public Prosecutor submitted that the case of
the prosecution is based on direct as well as circumstantial evidence. Further, though the eye-
witnesses namely Chhotey Lal (PW-11) and Danish @ Dillagi (PW-12) resiled from their
statements, but their contentions about the use of torture and force by the police officials could not
be established. Further, all the remaining prosecution witnesses supported the prosecution version
and there are no material contradiction in their testimonies. She further submitted that the difference
in size of jhuggi of accused Sherkhan and difference in time pointed out by the learned counsel for
the accused persons was not material contradiction. The recovery of iron pipes at the instance of the
accused persons could not be contradicted and the proposed manipulation in the documents by the
I.O was not clear. Further, the Sessions Case No. 57328/16 Page 21/113 prosecution succeeded in
establishing motive of commission of crime by examining the family members of the deceased
persons whose testimony remained unshattered. She further submitted that with regard to the
recovery of weapon of offence, the law is clear that the knowledge of place and fact discovered is
admissible under Section 27 of the Evidence Act. She further argued that the prosecution succeeded
in establishing the motive for commission of offences and identity of accused persons who also got
recovered the weapon of offence and therefore, the prosecution succeeded in establishing beyond
reasonable doubt that the accused persons had committed murder of Mehtab @ Dhanne and Noor
Alam @ Gaira and accordingly they deserve conviction.
26. Per contra, learned Counsel for the accused persons argued that both the eye-witnesses
examined by the prosecution turned hostile and therefore, their testimonies cannot be taken into
consideration. Further, during the investigation recovery of knife and burnt blanket could not be
effected though the accused Sherkhan was arrested within 3 days from the date of incident. Further,
Sessions Case No. 57328/16 Page 22/113 with regard to recovery of two iron pipes, there is
discrepancy in the testimonies of witnesses about depositing the same in the police Malkhana.
There is a marked difference in the size of the iron pipes which were alleged to have been recovered
at the instance of the accused persons and the iron pipes which were produced before the examining
doctor for taking his subsequent opinion about consistency. Further, as per the postmortem
examination report, there was no sharp edged injury though prosecution eye -witnesses alleged
multiple knife injuries. He further argued that the scene of crime i.e jhuggi of accused Sherkhan was
not secured for evidence collection which indicates a defective investigation. Further, there is no
explanation why Noor Alam @ Gaira was killed as no motive on the part of the accused persons in
this regard could be ascribed. He further argued that the dog squad which had arrived at the spot,
did not give any lead nor any clue regarding iron pipes, blanket or any knife could be found to
indicate the involvement of accused persons. Learned counsel for the accused persons, therefore,
argued that in view of material contradictions in the testimonies Sessions Case No. 57328/16 Page
23/113 of prosecution witnesses, the prosecution failed to establish its case beyond all reasonable
doubts to connect the accused persons with commission of offences and all the accused persons
deserve acquittal.
27. I have given my thoughtful consideration to the submissions of both sides.
Statutory Provisions
28. The substantive offences which the accused persons have been charged with are referred as
under:
120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to
commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2). xxxxxxxxxxxxx
302. Punishment for Murder- Whoever commits murder shall be punished with death, or
imprisonment for life and shall also be liable to fine.
The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
Sessions Case No. 57328/16 Page 24/113
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be
likely to cause the death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death or such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such injury is aforesaid.
Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference
in the definition of 'Murder' reads as follows:
299.Culpable homicide-Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as is likely to cause
death, commits the offence of culpable homicide.

201. Causing disappearance of evidence of offence, or giving false information to


screen offender - Whoever, knowing or having reason to believe that an offence has
been committed, causes any evidence of the commission of that offence to disappear,
with the intention of screening the offender from legal punishment, or with that
intention gives any information respecting the offence which he knows or believes to be
false;

Sessions Case No. 57328/16 Page 25/113 if a capital offence. - shall, if the offence
which he knows or believes to have been committed is punishable with death, be
punished with imprisonment of either description for a term which may extend to seven
years , and shall also be liable to fine;

Points for Determination:


29. In view of the above-mentioned provisions of law and the submissions advanced on both sides,
following points for determination are emerging in the present case :-
1. Whether Mehtab @ Dhanne S/o Mohd. Moti and Noor Alam @ Gaira S/o Mohd. Gannaur died in
the intervening night of 18/19-07-2013 ?
2. Whether both Mehtab @ Dhanne and Noor Alam @ Gaira had suffered such injuries on their
persons which were sufficient to cause their death in ordinary course of nature ?
3. Whether the death of both Mehtab @ Dhanne and Noor Alam @ Gaira was homicide ?
4. Whether the accused persons entered into conspiracy with each other to cause the death of
Mehtab @ Dhanne and Noor Alam @ Gaira ?
5. If so, whether in pursuance of such conspiracy the accused persons caused injuries on the person
of Mehtab @ Dhanne and Noor Alam @ Gaira ?
Sessions Case No. 57328/16 Page 26/113
6. Whether the accused persons caused the evidence of the present case to disappear to screen
themselves from legal punishment.
7. Whether the accused persons had a motive to commit murder of Mehtab @ Dhanne and Noor
Alam @ Gaira ?
Testimonies of prosecution witnesses:
30. To prove the afore-mentioned charges against the accused persons, the prosecution got
examined 33 witnesses in all. The testimonies of the prosecution witnesses and analysis thereof in
sequential order, are referred as under : Information about two dead bodies lying near railway track
and subsequent proceedings
31. SI Harish Chander Pathak (PW-31) deposed that on 19.07.2013 at about 6.41 a.m, a call was
received from mobile number 9899619179 and the same was attended by Ct. Madhu Sudan Singh.
The information was "Yaha per do admiyo ki hatya kar ke faik diya hai" and the place was informed
as "Sadi pur depot." Ct. Madhu Sudan filled the information in PCR form on computer as CPCR
DD No. 19 JUL 131250050 and forwarded the Sessions Case No. 57328/16 Page 27/113 same to
console operator for further necessary action. PW-31 identified the computerized copy of said PCR
form and certificate U/s 65-B of Indian Evidence Act as Ex.PW-31/A and Ex.PW-31/B.
32. In his cross-examination, PW-31 stated that the call was not received by him nor the PCR form
was filled in his presence. PW-31 further stated that he was working as Nodal Officer w.e.f
01.04.2015 and the computer wherein the entries were made on 19.07.2013 was not in his custody
nor he was incharge prior to 01.04.2015.
33. HC Sube Singh (PW-8) had recorded the call regarding throwing of two dead bodies under
Shadipur flyover in Roznamcha vide DD No.8A (Ex.PW-1/A). HC Sube Singh had handed over the
call (DD No. 8 A) to SI Sumit Kumar for investigation.
34. PW-8 was not cross-examined by the Ld. Counsel for the accused persons.
35. SI Sumit Kumar (PW-1) deposed that on 19.07.2013 on receiving DD No. 8 A, he alongwith Ct.
Kirori Mal and Ct. Rajbir had reached near railway track near Shadipur fly over where they found
two male dead bodies. There, one Mohd.
Sessions Case No. 57328/16 Page 28/113 Moti identified the dead bodies to be of Mehtab @
Dhanne and Noor Alam @ Gaira. There were injury marks on both the dead bodies. SI Sumit had
informed the senior officers, crime team and photographer. No eye witness was said to be found on
the spot. SI Sumit Kumar had prepared rukka (Ex.PW-1/B) and sent the same to police station
Ranjit Nagar through Ct. Rajbir for registration of the FIR. He had taken search of clothes worn by
the deceased persons. Cash amount of Rs. 135/-, one mobile phone make Micromax with SIM card
was recovered from Noor Alam @ Gaira (deceased), which were taken into possession by SI Sumit
vide memo Ex.PW-1/E. Nothing was recovered from the search of Mehtab @ Dhanne (deceased).
Thereafter, SI Sumit sent the dead bodies to DDU hospital for postmortem examination through Ct.
Kirorimal. The further investigation was handed over to Inspector Arjun Singh.
36. SI Sumit further deposed that IO Inspector Arjun Singh had prepared the site plan (Ex.PW- 1/C)
at his instance. Further, on 20.07.2013, he had accompanied the IO to DDU hospital mortuary
Sessions Case No. 57328/16 Page 29/113 where Ct. Kirori Mal handed over six sealed parcels to
the IO vide memo Ex. PW-1/F . SI Sumit had identified the case property i.e. chappals, which were
found lying near the dead bodies (Ex.P-1 and Ex.P-2) (colly).
37. In his cross-examination, PW-1 stated that when he reached at the spot 25-30 public persons
were present there. He had given message to the Crime Team at about 9 a.m which arrived at the
spot at around 10 am and remained there for about 30-45 minutes. Further, the Crime Team tried to
find out the clues in the nearby area of 300 to 400 meters where the dead bodies were lying. PW-1
further stated that there was a nala (drain) near the spot at a distance of about 200 meters. PW-1
further stated that SHO PS Ranjeet Nagar had arrived at the spot at around 7.15 a.m and remained at
the spot till around 11 a.m. PW-1 further stated that on the instructions of the SHO, he handed over
the investigation to ATO Inspector Arjun Singh who arrived at the spot at around 8 a.m. Further,
Inspector Arjun Singh and he (PW-1) had not made any investigation in the jhuggies situated near
the spot during his stay. On further cross-examination, Sessions Case No. 57328/16 Page 30/113
PW-1 stated that the Dog Squad was called at the spot by the SHO through wireless message which
arrived at about 9 a.m and remained there for about 30 to 45 minutes. The Dog Squad consisted of
three police officials and two dogs. He (PW-1) had remained present at the spot till the Dog Squad
remained there, however, the Dog Squad could not find any weapon of offence or any other clue at
the spot or in nearby area and left after about 30-45 minutes. During this period, the Dog Squad had
also gone in the jhuggies and other nearby areas. PW-1 further stated that IO Inspector Arjun Singh
was carrying his IO's kit and had lifted the earth control samples and other samples from the spot
with the help of 'Khurpi' after wearing the gloves. Further, the seal was not handed over to anyone
by Inspector Arjun Singh after its use. On further cross-examination PW-1 stated that on 20.07.2013
he had reached at the DDU hospital around 10 a.m alongwith Inspector Arjun Singh where the
doctor concerned handed over six parcels to Inspector Arjun Singh which were sealed with the seal
of DDU hospital.
Sessions Case No. 57328/16 Page 31/113
38. Ct. Rajbir Panwar (PW-25) deposed that on 19.07.2013, he had handed over DD No. 8A to SI
Sumit Kumar and accompanied him to Shadipur flyover, where they saw two dead bodies lying
near the wall at a distance of 300 meters from the railway track. One persons namely, Moti had
identified one dead body to be of his son Mehtab and the other to be of his brother-in-law (sala)
Noor Alam. PW-25 deposed that there were injuries on the legs and heads of dead bodies and there
were sign of dragging the dead bodies. He had taken tehrir to police station Ranjit Nagar for
registration of FIR and after registration of FIR, the further investigation was handed over to
Inspector Arjun Singh. Thereafter, PW-25 had come to the spot with Inspector Arjun Singh where
exhibits were lifted from the spot and taken into possession vide seizure memo (Ex.PW-1/D). IO
recorded statement of PW-25 in this regard in the police station.
39. In his cross-examination, PW-25 deposed about the presence of Dog Squad at the spot wherein
there were about 2-3 dogs which remained at the spot for about 30-45 minutes. PW-25 could not
remember the colours of the dogs. He further Sessions Case No. 57328/16 Page 32/113 stated that
after registration of the FIR, he had left the police station with Inspector Arjun Singh at about 8.30
a.m and reached at the place of recovery of dead bodies. He further stated that the seal after use was
handed over to him which he deposited in the Malkhana.
40. Constable Kirori Mal (PW-28) deposed that on 19.07.2013, Ct. Rajbir had handed over DD No.
8A to SI Sumit Kumar and thereafter he alongwith SI Sumit Kumar and Ct. Rajbir reached near
Shadipur flyover. They saw two male dead bodies lying near the railway line. PW-28 had noticed
injuries on the several parts of the dead bodies. PW-28 further deposed that during the enquiry, one
person namely, Moti identified the dead body to be of his son namely, Mehtab @ Dhanne and the
other one of Noor Alam @ Gaira, both aged about 20-22 years. He had also deposed about recovery
of Rs. 135/- and one mobile phone (Micromax) from search of deceased Noor Alam, which were
seized by SI Sumit Kumar vide seizure memo (Ex.PW- 1/E). In the presence of PW-28, SI Sumit
Kumar had prepared the rukka and handed over the same to Ct. Rajbir for registration of the FIR.
On the Sessions Case No. 57328/16 Page 33/113 direction of SI Sumit Kumar, PW-28 had taken
both the dead bodies to the mortuary of DDU hospital. On 20.07.2013, after the postmortem
examination of both the dead bodies, doctor had given six sealed pullandas duly sealed with the seal
of DFMT/DDU hospital to constable Kirori Mal(PW-28). He handed over the said sealed pullandas
to SI Sumit Kumar which were seized vide seizure memo (Ex.PW-1/F).
41. In his cross-examination PW-28 stated that when he reached at the spot, 150 to 200 persons
were present there and senior officers like SHO, Inspector and ACP reached at the spot after 15 to
20 minutes thereafter. The Crime Team reached at the spot after 8 a.m. PW-28 had left the spot
before 9 a.m after shifting of the dead bodies. When he left the spot, the Dog Squad was present
there.
42. On 19.07.2013 at about 10.05 a.m, HC Pratap Singh (PW-9) had got registered the FIR (Ex.PW-
9/A) of the present case on the basis of rukka prepared by SI Sumit and brought by Ct. Rajbir. He
also issued certificate U/s 65 B of the Indian Evidence Act (Ex.PW-9/C) regarding registration of
FIR in the present case. After Sessions Case No. 57328/16 Page 34/113 registration of FIR, HC
Pratap Singh (PW-9) had handed over the original rukka and copy of FIR to Ct. Rajbir to deliver the
same to IO Arjun Singh. He had also got exhibited the copy of Roznamcha bearing DD No. 12 A
dated 19.07.2013 as Ex.PW- 9/D.
43. PW-9 was not cross-examined by the Ld. Counsel for the accused persons.
44. Constable Sukhbir Singh (PW-20) deposed that on 19.07.2013, duty officer HC Pratap Singh
(PW-9) had given him four envelopes containing copies of FIR of the present case. PW-20 had
delivered one envelope to the residence of the learned ACMM, Karkardooma Courts residential
complex, one in the office of Joint CP, Central Range, one envelope in the office of DCP, Central
District and lastly in the office of ACP, Patel Nagar.
45. PW-20 was not cross-examined by the Ld. Counsel for the accused persons.
46. Next, on 19.07.2013, after receiving information from District Control Room, photographer HC
Tara Chand (PW-3) alongwith SI Pankaj had reached at the railway track near Shadipur flyover,
where they found two male dead Sessions Case No. 57328/16 Page 35/113 bodies lying there. After
inspection, HC Tara Chand had taken 22 photographs (Ex.PW-3/B-1 to Ex.PW-3/B-22) of the spot
as well as of the dead bodies. IO had recorded his statement in this regard.
47. In his cross-examination PW-3 stated that he alongwith other members of team had reached at
the spot at about 7.40 a.m on receiving the information from Control Room at about 7.15 a.m. PW-3
had taken photographs at the instance of Incharge of Crime Team as well as the other police
officials present at the spot.
48. SI Pankaj (PW-4) deposed that on 19.07.2013, after receiving information from District Control
Room, he alongwith HC Tara Chand (photographer) and other staff had reached at railway track
near Shadipur flyover, where they found two male dead bodies lying over there. SI Pankaj had
prepared the mobile crime team report (Ex.PW-4/A) and handed over the same to the IO.
49. In cross-examination, PW-4 stated that the information was received at about 7.15 a.m from
control room and thereafter he with other members Sessions Case No. 57328/16 Page 36/113 of the
team directly reached at the spot at about 7.30 a.m.
50. Inspector Mahesh Kumar (PW-18) had deposed about his reaching at police Station Ranjit
Nagar on 06.08.2013 on the request of Inspector Arjun Singh, IO of the case. From the police
station, PW-18 alongwith the IO had gone to the place of incident i.e. Jhuggi no. A-386, Bihari
Camp, Katputli Colony, Delhi as well near the railway track, from where two dead bodies were
recovered. At the instance of IO, Inspector Mahesh Kumar (PW-18) had taken rough notes and
measurements of the spot and prepared site plan (Ex. PW-18/A), which he later on handed over to
the IO.
51. PW-18 was not cross-examined by the Ld. Counsel for the accused persons.
Analysis
52. It is established from the testimonies of above-mentioned prosecution witnesses that on
19.07.2013 on receiving DD No.8A (Ex.PW-1/A), SI Sumit Kumar (PW-1), Constable Rajbir
Kanwar (PW-25 and Constable Kirori Mal (PW-28) had Sessions Case No. 57328/16 Page 37/113
reached at the spot i.e railway tracks, near Shadipur Flyover, where two dead bodies of male
persons namely Mehtab @ Dhanne and Noor Alam @ Gaira were found lying. Consequently, FIR
Ex.PW- 9/A was registered, photographs Ex.PW-3/B-1 to Ex.PW-3/B-22 of the spot as well as of
the dead bodies were taken. The spot was inspected by the mobile crime team vide report Ex.PW-
4/A and site plan Ex.PW18/A was prepared. The physical evidence were also lifted and seized from
the spot. Dog squad was also called at the spot, however, no clue or any weapon of offence could be
traced out.
Testimonies of Eye Witnesses
53. The case of the prosecution is primarily predicated upon the eye-witness account of Sh. Chhote
Lal (PW-11) and Danish @ Dillagi (PW-
12).
54. Shri Chhote Lal (PW11), one of the two eye witnesses, correctly identified accused Sher Khan
and stated that jhuggi no. 386, Bihari Camp, Kathputli Colony, Delhi, where he had been earlier
residing was owned by one Shri Chhotu and was Sessions Case No. 57328/16 Page 38/113 taken on
rent by accused Sher Khan at a monthly rent of Rs. 1400/-. He also stated that including him, total
8-9 persons i.e. accused Sher Khan, his wife Ravina, Khurshid, Ibrahim , Pappu, Suresh, Danish
and Kalim were residing in the said jhuggi.
He knew deceased Mehtab @ Dhanne and deceased Noor Alam as both were friends of Khurshid
and used to visit their said jhuggi.
55. Since PW-11 was not disclosing the whole facts, the Ld. Addl. PP for the state cross-examined
him after seeking permission of the court and confronted him with his statement (Ex.PW-11/A)
recorded under Section 164 Cr.P.C. In his cross- examination, he stated that police officials had
beaten and pressurized him to name accused Farid @ Bhutwa and accordingly, he gave his
statement (Ex.PW-11/A) before the learned Metropolitan Magistrate. PW-11 had denied the
suggestion if on 18.07.2013, he had seen accused Farid @ Bhutwa consuming Ganja with three
other persons or that in the night of 18.07.2013, accused Farid @ Bhutwa and his three associates
had brought Mehtab @ Dhanne and Noor Alam in the above-said jhuggi and beaten both of them.
He further denied the Sessions Case No. 57328/16 Page 39/113 suggestion that accused Sher Khan
had shown knife to all the persons present in the jhuggi while they tried to intervene. PW-11 also
denied the suggestion that accused Farid @ Bhutwa and accused Sher Khan and other associates
assaulted Mehtab @ Dhanne and Noor Alam with the help of iron pipe and knife and shut their
mouth with hand. He further denied that blood was spread on the floor which was cleaned by
accused persons with blanket and both the dead bodies were wrapped in the said blanket and taken
from there by accused persons. PW-11 denied the suggestion if Irshad, brother of accused Sher
Khan, Mohd. Raza, brother of accused Farid @ Bhutwa and Firoz, brother-in- law (sala) of accused
Farid @ Bhutwa were also involved in the present offence. He could not identify accused Mohd
Raza. He volunteered to say that he was lifted by the police from bus stand, Moti Nagar when he
was returning from Bawana. PW-11 further denied that accused Sher Khan had threatened him to
name only accused Farid @ Bhutwa, if apprehended by the police.
56. PW-11 was also cross-examined by the learned Counsel for all the accused persons wherein
Sessions Case No. 57328/16 Page 40/113 he admitted it to be correct that no incident had taken
place on 18.07.2013 in his presence and he was lifted by the police and was pressurized to make a
statement in the present case. He admitted it to be correct that on 18.07.2013 all of them were
sleeping peacefully in the above-said jhuggi and no such incident had happened. He further
admitted it to be correct that he was severally beaten by the police officials in the police station and
was asked to name accused persons. On further cross- examination, PW-11 stated that he was
apprehended by the police on 20.07.2013 and was kept on the first floor of police station Ranjeet
Nagar till 29.07.2013. Further, his mouth was closed by a cloth, he was laid down on railway track
by the police and was threatened that he would be crushed on the railway track. PW-11 further
admitted it to be correct that on the day of recording of his statement under Section 164 Cr.P.C, he
was brought to the court in police vehicle and throughout the journey he was pressurized and
threatened to depose as per police version and to name the accused persons before the Magistrate
otherwise he would be again beaten.
Sessions Case No. 57328/16 Page 41/113 PW-11 further stated that his statement under Section 161
Cr.P.C recorded by the police officials was never read over and explained to him.
57. Danish @ Dillagi (PW-12), the second eye- witness deposed that in the year 2013, he had been
living at Jhuggi no. 386, Bihari Camp, Kathputli Colony, Patel Nagar, Delhi. The above-said jhuggi
was owned by one Chhotu. Accused Sher Khan, Khurshid, Chhote Lal, Sahid and Kalim also used
to reside with him in the said jhuggi. PW-12 had correctly identified accused Sher Khan, however,
he did not know if parental house of wife of accused Sher Khan was also in the same locality. He
stated that he had never met deceased persons namely, Mehtab @ Dhanne and Noor Alam @ Gaira
and was not aware about the incident which happened with them.
58. Again, as Danish @ Dillagi (PW-12) was not disclosing the whole facts, the learned Additional
Public Prosecutor for the State cross-examined him after taking the permission of the court wherein
he deposed that he had stated before the learned Metropolitan Magistrate that on 18.07.2013 at
about 11.30 a.m-12.00 midnight, accused Farid @ Sessions Case No. 57328/16 Page 42/113
Bhutwa alongwith three other persons had brought Mehtab @ Dhanne and Noor Alam @ Gaira
while beating them. However, he volunteered to say that he was pressurized by the police officials
to depose in the said manner before the learned Metropolitan Magistrate. He also voluntarily stated
that he was pressurized by the police officials to say before the learned Metropolitan Magistrate that
mouth of Dhanne and Gaira was muzzled with the palm by accused persons and both were assaulted
with iron pipe and knife and that accused Bhutwa and his accomplices kept on stabbing Gaira and
Dhanne and both of them died on the spot. He further voluntarily deposed that he was pressurized
by the police officials to say before the learned Metropolitan Magistrate that Bhutwa and his
accomplices wiped out the blood splattered on the floor of the jhuggi and wrapped both dead bodies
in a blanket and that all the persons present in the jhuggi were threatened by the accused persons not
to disclose the incident to anyone. Further, he was pressurized to say that Bhutwa threatened Chhote
Lal and Khurshid to wipe out remaining blood and accordingly, both of them wiped the blood stains
Sessions Case No. 57328/16 Page 43/113 with water, or that Bhutwa threatened them not to follow
them while removing dead bodies in the blanket or that both the dead bodies were found at railway
track and they were apprehended by the police from their jhuggi at the instance of dog squad. PW-
12 further deposed that he had not lodged any complaint against the police officials, who had
pressurized him to depose in the above- mentioned manner before the learned Metropolitan
Magistrate. He failed to identify accused persons namely, Mohd. Raza and Farid @ Bhutwa.
59. PW-12 also stated that he had told the police that accused Bhutwa had gone to jail prior to the
present incident as he had heard about the same from others. He deposed that he had not stated to
the police that accused persons were saying that the dead bodies should be thrown on railway track
so that it could be taken as an accident or that Mohd. Raza, Irshad and Firoz were also involved in
the present incident.
60. PW-12 was also cross-examined by the Ld. Counsel for all the accused persons wherein he
admitted it to be correct that no incident had taken place on 18.07.2013 in his presence and he was
Sessions Case No. 57328/16 Page 44/113 lifted by the police and was pressurized to make a
statement in the present case. He further admitted it to be correct that on 18.07.2013 all of them
were sleeping peacefully in the above-said jhuggi and no such incident had happened. Further, he
was severally beaten by the police officials in the police station and was asked to name accused
persons. On further cross-examination, PW-12 stated that he was apprehended by the police on the
next day and was kept in police station Ranjit Nagar for about 10-12 days. He further admitted it to
be correct that police had pressurized him after beating and threatening him to depose as per police
version and no incident of beating the persons namely Dhanne and Noor Alam by iron pipe and
knife had happened in the jhuggi. He further admitted it to be correct that no such incident had
taken place in his presence on 18.07.2013 and he was threatened and pressurized by the police
officials to depose against the accused persons before the Magistrate at the time of recording of his
statement under Section 164 Cr.P.C otherwise he would face dire consequences.
Sessions Case No. 57328/16 Page 45/113
61. Shri Sunil Kumar Sharma, learned Metropolitan Magistrate (PW-14) deposed that on
24.07.2013, he had recorded the statements of witnesses namely Chhotey Lal and Mohd. Danish @
Dillagi vide detailed proceedings Ex. PW-11/A and Ex.PW-12/A respectively. PW-14 had also
appended one certificate at the end of both the statements certifying that the above-said statements
of both the witnesses contained full and true account of the statements and nothing was added or
subtracted therefrom.
62. In his cross-examination by the Ld. Counsel for accused persons, PW-14 stated that before
recording the statements of the witnesses he had satisfied himself that the witnesses give their
statements without any fear and influence and the procedure adopted by him in this regard was duly
mentioned in the proceedings (Ex.PW-11/A) and (Ex.PW-12/A).
Analysis
63. It is clear from the testimonies of Chhote Lal (PW-11) and Danish @ Dillagi (PW-12) that both
the purported eye-witnesses of the incident completely resiled from their statements recorded
Sessions Case No. 57328/16 Page 46/113 under Section 164 Cr.P.C by Shri Sunil Kumar Sharma,
learned Metropolitan Magistrate (PW-14).
64. In his cross-examination by learned Additional Prosecutor for the State, PW-11 was confronted
with his statement Ex.PW-11/A recorded under Section 164 Cr.P.C, however, he denied each and
every averment mentioned in his statement Ex.PW-11/A. PW-11 categorically stated that police
officials had beaten and pressurised to name accused Farid @ Bhutwa and under pressure of the
police officials, he gave his statement Ex.PW-11/A before the learned Metropolitan Magistrate. PW-
11 was also cross-examined by the learned counsel for the accused persons wherein he stated that
he had not witnessed any incident on 18.7.2013 and in fact, he was pressurised by the police to
make a statement in the present case. He further stated that he was confined in police station Ranjit
Nagar and was threatened with his life or to make statement before the learned Metropolitan
Magistrate. He could not identify the accused Mohd. Raza.
65. Similarly, Danish @ Dillagi (PW-12) was also confronted with his statement recorded under
Sessions Case No. 57328/16 Page 47/113 Section 164 Cr.P.C on which he stated that he was
pressurized by the police officials to state in the said manner before the learned Metropolitan
Magistrate. He also failed to identify the accused persons namely Mohd. Raza and Farid @ Bhutwa.
66. Here, it is pertinent to refer the testimony of Dr. B.N. Mishra (PW16) who had conducted the
postmortem examination on the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira.
67. Dr. B.N Mishra, Medical Officer-cum- Medico Legal Expert and Criminologist, DDU Hospital
was examined as PW-16. He deposed that on 20.07.2013, he had conducted the postmortem
examination on the dead body of deceased Mehtab @ Dhanne. On external examination of the dead
body, Dr. B.N Mishra had observed four external injuries in the form of laceration, bruisings and
stab wounds on different parts of the body. On internal examination, it was observed that the left
parietal boe of skull was fractured. The multiple ribs i.e. 3rd to 7th on left side and 4th to 6th ribs on
right side of chest were fractured. Both lungs were contused and left lower lobe of left lung was
lacerated. The right lobe of liver was lacerated with collection of Sessions Case No. 57328/16 Page
48/113 blood into peritoneum. After completion of postmortem examination, Dr. B.N Mishra (PW-
16) had prepared the postmortem examination report no. 974/13 (Ex. PW-16/A) and opined that the
cause of death was hemorrhagic shock caused by laceration of multiple vital organs (lung,
liver,kidney and multiple ribs) as a result of compression of chest and abdomen by exertion of hard
and heavy force upon the affected parts. The external injury no.2 was opined to be sufficient to
cause death in ordinary course of nature. The external injury no. 1&3 were postmortem in nature.
The manner of death was opined to be homicidal and time since death was approximately one and
half days prior to the postmortem examination of dead body.
68. PW-16 further deposed that on the same day, he had also conducted the postmortem
examination on the dead body of Noor Alam @ Gaira. On examination of the dead body, he had
observed five external injuries on different parts of the body in addition to associated with internal
injuries. On the basis of autopsy findings, PW-16 had prepared postmortem examination report
(Ex.PW-16/B) and Sessions Case No. 57328/16 Page 49/113 opined that cause of death was
hemorrhagic shock caused by laceration of multiple vital organ (spleen, lung, liver and multiple ribs
etc) as a result of compression of chest and abdomen by exertion of hard and heavy force upon the
affected parts. The external injury nos. 4&5 were opined to be postmortem in nature. External
injury no.1 was opined to be perimortem in nature. Injury nos. 2 & 3 were opined to be ante-
mortem in nature and were sufficient to cause death in ordinary course of nature. The manner of
death was opined to be homicidal and time since death was approximately one and half days prior
to the postmortem.
69. In cross-examination, PW-16 stated that no specific opinion could be given about the weapon
used for the purpose of inflicting injuries on the body of deceased Mehtab. However, it was opined
in the postmortem report that the injuries sustained could have been caused by compression of chest
and abdomen by hard heavy objects/force (pertaining to ante-mortem injuries). He further stated
that the injury no.1 was post-mortem in nature and could have been caused by blunt force exerted
upon head by some blunt object or due to Sessions Case No. 57328/16 Page 50/113 forcibly fallen
on the hard surface after death. Further, injury no.2 pertaining to chest injury which caused multiple
ribs fracture on both sides of chest in addition to laceration of lungs, could have been caused by
kneeling or compression by some hard heavy objects on the chest. PW-16 further stated that the
weapon used could be knees, elbow, hard objects like stones, wooden blocks or similar kind of
object. No injury suggestive of any defence wounds were observed on the body of deceased
Mehtab. To further clarify about the degree of force applied for the purpose of infliction of injuries,
PW-16 stated that in vague terms it could be inferred that the force was sufficient to compress the
chest and abdomen. Further, with regard to external injury no. 3 on the dead body of deceased
Mehtab, PW-16 stated that the same was postmortem in nature and could have been inflicted by
some blunt object like rods or other similar kind of articles or even by falling upon some projecting
objects but certainly was not caused by knife or other sharp edged weapon. Further, the external
injury no. 4 on the dead body of deceased Mehtab could have been inflicted by some blunt object
like Sessions Case No. 57328/16 Page 51/113 danda or hollow pipe etc. PW-16 further stated that
any heavy blunt object like rod, danda and metallic pipe could have been used for causing scalp
fracture as mentioned as external injury no.1 on the body of Mehtab. He further clarified that the
internal injuries related to head injury pertaining to this case could only occur in postmortem
conditions. On subsequent examination, PW-16 stated that the time since death could be more by 8
to 12 hours and in the present case, he ascertained the time since death based upon the passing off
rigour mortis and early stage of decomposition of both bodies (greenish discolouration of large
intestine). On further cross-examination regarding subsequent opinion qua the weapon of offence,
PW-16 stated that the timing of blood staining on the surface of metal object/ weapon of offence
could not be ascertained accurately or even tentatively on the basis of its appearance or colour
changes. He had not got the blood staining chemically examined because such facility was not
available in the hospital.
70. Since both PW-11 and PW-12 resiled completely from their statements recorded before Sessions
Case No. 57328/16 Page 52/113 the learned Metropolitan Magistrate Sh. Sunil Kumar Sharma (PW-
14) while deposing before this Court and also levelled allegations regarding pressure exercised on
them by the police officials, the sanctity of their statements under Section 164 Cr.P.C stands
violated. In view of grave allegations of their torturous treatment by the police officials to depose in
a particular manner before the learned Metropolitan Magistrate (PW-14), the truthfulness of their
statements becomes doubtful and cannot be relied upon for consideration of incriminating nature of
their statements against the accused persons, more-so, when both PW-11 and PW-12 failed to
identify accused Farid @ Bhutwa and accused Mohd. Raza while deposing in the court.
71. Furthermore, the statements of both PW-11 and PW-12 recorded under Section 164 Cr.P.C are
not substantiated with the other material on record. For instance, both PW-11 and PW-12 had
deposed about the infliction of repeated knife injuries on the person of Mehtab @ Dhanne and Noor
Alam @ Gaira by the accused Farid @ Bhutwa and his three other associates, but there are no
incised sharp Sessions Case No. 57328/16 Page 53/113 edged injuries observed in postmortem
examination report (PW-16/A).
72. Further,.Dr. B.N. Mishra (PW-16) categorically opined that the injuries sustained by both the
deceased persons could have been caused by compression of chest and abdomen by hard heavy
object. With regard to external injury no.3 on the dead body of deceased Mehtab @ Dhanne, PW-16
stated that the same was postmortem in nature and could have been inflicted by some blunt object
or even by falling upon some projecting object, but was certainly not caused by knife or other sharp
edged weapon. Therefore, the postmortem examination report Ex.PW-16/A does not substantiate the
version of PW-11 and PW-12.
73. Furthermore, even the names of other accused persons except accused Farid @ Bhutwa and
accused Sherkhan were not disclosed by PW-11 and PW-12 before the learned Metropolitan
Magistrate (PW-14) at the time of recording of their statements Ex.PW-11/A. Both of them had also
stated about the repeated assault by accused Farid @ Bhutwa and his other associates on Mehtab @
Dhanne and Noor Alam @ Gaire with iron rods and Sessions Case No. 57328/16 Page 54/113 fist
and leg blows around midnight on 18.07.2013. However, the immediate neighbour of the jhuggi
belonging to accused Sherkhan, where the alleged incident had occurred, could not notice any
commotion or could not hear any screams etc. at that hour of night, when there is complete silence
all around and a little voice also travels far and wide. Then according to the statement of Danish @
Dillagi (PW-12) one black colour dog of dog squad had entered in his room, consequent upon
which the police officials had caught them, whereas Chhote Lal (PW-11) did not state any such fact
before the learned Metropolitan Magistrate (PW-
14). On the other hand, PW-33 I.O of the case deposed that both PW-11 and PW-12 were
subsequently contacted on 22.07.2013 during the investigation.
74. Next, the testimony of Narpat and Chottu Shri Narpat @ Chhote Lal (PW-5) also casts some
doubts over the actual occupants of the jhuggi no. A-386. Shri Narpat @ Chotte Lal (PW-5)
deposed that he was the owner of Jhuggi no. A-386, Bihari Camp, Katputli Colony, Shadipur, Delhi,
which he had given on rent to one Mustafa, brother of Sessions Case No. 57328/16 Page 55/113
accused Sher Khan at a monthly rent of Rs. 1500 and the said Mustafa alongwith accused Sherkhan
was residing in the said jhuggi with family members. PW-5 was cross-examined by the learned
Additional Public Prosecutor for the State with the permission of the court as he was not disclosing
the complete facts. In his cross-examination, PW-5 stated that at the time of incident, Imran,
Khurshid, Shahid, Kalim, Suresh, Pappu, Chhotu Lal and Dillagi were also residing in the above-
said jhuggi alongwith accused Sher Khan and his brother Mustafa.
75. PW-5 was also cross-examined by the counsel for accused persons wherein he stated that he had
not got the police verification done about the tenants. He further stated that the jhuggi no. A- 386
measures around 15/20 feet X 8 feet in size. PW-5 admitted about not knowing the names of
persons other than Mustafa and Sherkhan on which a court question was put to him to the effect that
at one place he had stated the names of the persons residing with Sherkhan and Mustafa while on
the other he denied about having knowledge about their names so which of the statement was
correct. PW-5 Sessions Case No. 57328/16 Page 56/113 reiterated about not knowing the names of
the persons other than Sherkhan and Mustafa. He further clarified that he had admitted the names
during the cross-examination by learned Additional Public Prosecutor as he was having some idea
about the other persons but he was not sure about their names. On further cross-examination, PW-5
stated that the police had met with him only once in respect of the present case.
76. In the light of above-discussed circumstances, the testimonies of PW-11 and PW- 12 do not
inspire any confidence and are not trustworthy. Accordingly, the purported eye- witness account of
both PW-11 and PW-12 is of no help to the prosecution.
Spot Inspection of Scene of Crime
77. In this regard, prosecution examined SI Amit Tyagi (PW-24) and Ct. Ravinder (PW-26).
78. SI Amit Tyagi (PW-24) deposed that on 24.07.2013, he had delivered a letter, written by the IO
of the case, in the office of FSL, Rohini. At FSL Rohini, a team of experts under the supervision of
Dr. Dhruv Sharma was constituted and he (PW-24), Sessions Case No. 57328/16 Page 57/113
alongwith the said expert team reached at Jhuggi no. A/386, Bihari Mohalla, Kathputli Colony,
Pandav Nagar, Delhi. On instructions of the expert team, he (PW-24) had cut some piece from the
right side wall of gate of the jhuggi and kept the same in three plastic containers, which were duly
sealed with the seal of RTNGR-II. PW-24 also deposed about preparing pullandas of upper layer of
the floor and sand mixed soil and keeping the same in a gunny bag, which was taken into
possession vide seizure memo (Ex.PW-24/A). PW- 24 had identified the case property i.e. the brick
pieces, cemented material and sandy material all collectivity (Ex.P-5).
79. In his cross-examination, PW-24 stated that he alongwith three FSL officials had reached at the
spot around 1.50 p.m on 24.07.2013 and remained there for about one hour. PW-24 had also asked
Ct. Ravinder Singh to bring some instruments, plastic boxes, gunny bags and other articles at the
spot, which were arranged by Ct. Ravinder. On further cross-examination, PW-24 stated that jhuggi
no. A/386, Bihari Mohalla, Kathpulti Colony, Pandav Nagar was not sealed but was lying locked
and the Sessions Case No. 57328/16 Page 58/113 key of the lock of the jhuggi was with Ct.
Ravinder. Further, PW-24 called up at police station at about 1.45 p.m and asked them to send seal
of RTNGR- II. He handed over the said seal to Ct. Ravinder on that day after sealing the pullandas.
PW-24 had not obtained the signatures of officials of FSL Rohini or any other public persons on the
seizure memos of pullanda, which were taken from the spot on that day.
80. Constable Ravinder Kumar (PW-26) had deposed that he had joined the investigation in the
present case on 24.07.2013. He alongwith SI Amit Tyagi and FSL team went to the jhuggi in the
area of Kathputli Colony, pointed out by accused Sher Khan. FSL team inspected the spot and lifted
the exhibits.
81. In his cross-examination, PW-26 stated that on 24.07.2013, he joined the investigation and
alongwith SI Amit and FSL team visited the jhuggi of accused Sherkhan. The jhuggi was locked
which was opened by PW-26 after taking the key of the lock from Malkhana. PW-26 stated the area
of the said jhuggi to be about 13-14 meter, there being no bed or cot in the jhuggi. PW-26 further
stated that Sessions Case No. 57328/16 Page 59/113 on the left side of jhuggi of accused Sherkhan
there was one jhuggi belonging to one doctor and on the right side there was a jhuggi of one person
namely, Raju. However, the occupants of the adjoining jhuggies were not asked to join the
investigation. Analysis
82. It is not clear from the testimonies of both PW-24 and PW-26 why the portions of wall and floor
of the jhuggi and the sand mixed soil were lifted from the jhuggi. Neither PW-24 nor PW-26
deposed about any blood stains having been found in the said jhuggi. Similarly, none of the
members of the FSL expert team was examined, nor any FSL result of exhibits lifted from the
jhuggi of Sherkhan were brought on record by the prosecution. Therefore, it is not clear at all what
the purpose of lifting the exhibits from the jhuggi of accused Sherkhan was. It is also clear that the
produced case property i.e the brick pieces, cemented material and sandy material Ex.P-5
(collectively) were not blood stained. Then, there is no material to indicate if the aforesaid case
property was sent for forensic examination wherein some traces of human blood could have been
found. Admittedly, Sessions Case No. 57328/16 Page 60/113 PW-24 had not obtained signatures of
any official of FSL expert team on the seizure memo of the pullandas prepared at the said jhuggi.
Furthermore, PW-24 and PW-26 deposed in contradictory manner about their arrival at the said
jhuggi as PW-24 deposed that when he alongwith FSL team reached at the spot, constable Ravinder
(PW-26) was found present there, whereas constable Ravinder Kumar (PW-26) deposed that he
alongwith SI Amit Kumar (PW-24) and the FSL team had visited the said jhuggi. Therefore, the
testimony of PW-24 and PW-26 with regard to the forensic examination of the scene of crime i.e
Jhuggi no. A-386, Bihari Mohalla, Kathputli Colony, Delhi, remained inconclusive and do not
establish any circumstance favouring the prosecution.
Arrest of accused persons and recovery of weapon of offence
83. To establish these circumstances, the prosecution examined following witnesses:
84. Constable Ravinder Kumar (PW-26) deposed that on 23.07.2013, he again joined the
investigation in the present case alongwith SI Sessions Case No. 57328/16 Page 61/113 Harpal, HC
Yudhvir, HC Mahender and Ct. Rajbir. They all went to Shadipur flyover in search of accused
persons. On pointing of a secret informer, accused Sher Khan was apprehended near railway line
under the flyover of Shadipur. On interrogation by SI Harpal, accused Sher Khan confessed his guilt
and disclosed that he had taken revenge of earlier quarrel, which had taken place between him and
deceased persons. Accused Sher Khan had taken them to a jhuggi in the area of Kathputli colony
and pointed out the place where murder of Mehtab @ Dhanne and Noor Alam @ Gaira was
committed. IO prepared pointing out memo (Ex.PW-26/A). Accused further disclosed about
throwing the rod used in the murder in ganda nala (drain) near railway line. He further disclosed
about taking the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira in a blanket near
railway line. He further deposed that IO arrested accused Sher Khan vide arrest memo (Ex.PW-
26/B). Personal search of accused Sher Khan was conducted vide personal search memo (Ex. PW-
26/C). IO recorded disclosure statement (Ex.PW-26/D) of accused Sher Sessions Case No.
57328/16 Page 62/113 Khan. After medical examination, accused Sher Khan was sent up to lock-
up.
85. PW-26 further deposed about again joining the investigation in the present case on 02.08.2013.
On that day, he alongwith SI Harpal, HC Yudhvir, HC Mahender and another Ct. Ravinder went to
Kathputli colony in search of accused persons. At about 7.45 p.m, on the information of the secret
informer, accused Farid @ Bhutwa was apprehended from railway line side, Satya Park, Naraina
road, Delhi. On interrogation, accused Farid @ Bhutwa confessed about his guilt in the present case
and was arrested vide arrest memo (Ex. PW-26/E). His personal search was conducted vide personal
search memo (Ex.PW-26/F) and his disclouser statement (Ex.PW-26/G) was recorded. PW-26
further deposed that accused Farid @ Bhutwa disclosed that he alongwith accused Sher Khan,
accused Firoz and Mohd. Raza had committed the murder of Mehtab @ Dhanne and Noor Alam @
Gaira in the jhuggi of Sher Khan. Accused Farid @ Bhutwa pointed out the place of murder i.e.
jhuggi of accused Sher Khan situated in the area of Kathputli colony vide pointing out Sessions
Case No. 57328/16 Page 63/113 memo Ex.PW-26/H. Accused Farid @ Bhutwa also disclosed that
they had given thick and fist blows and had thrown the rod used in a ganda nala (drain) near railway
line and had also taken the dead bodies in a blanket from the jhuggi to the railway line. Accused
Farid @ Bhutwa took them to ganda nala (drain) near railway line towards Kirti Nagar where one
pipe was recovered at the instance of accused Farid @ Bhutwa, which was seized by the IO vide
seizure memo (Ex.PW-26/I). Thereafter, after medical examination, accused Farid @ Bhutwa was
sent up to lock-up.
86. In his cross-examination, PW-26 stated that on 23.07.2013 he alongwith SI Harpal Singh left the
police station for the investigation of the present case at about 5.30 p.m. Further, the secret
information was received by SI Harpal Singh in his presence at about about 6 p.m below the
Shadipur Flyover. PW-26 further stated that the secret informer remained with them till
apprehension of accused Sherkhan. He again said that the secret informer remained with them till he
pointed out the accused Sherkhan. PW-26 further stated that the place where the accused Sherkhan
was Sessions Case No. 57328/16 Page 64/113 apprehended was a busy place and number of public
persons were present there who refused to join the investigation when asked by the IO to do so.
87. On further cross-examination PW-26 stated that he again joined the investigation on 02.08.2013
and left the police station for investigation with SI Harpal Singh at around 6 p.m on foot. He further
stated that the distance between Shadipur flyover and PS Ranjeet Nagar being about 600 meters,
they reached at Shadipur flyover within 15-20 minutes. The secret informer had met SI Harpal
Singh in his presence. PW-26 further stated that SHO had not sent any other staff for their
assistance. He further clarified that he and SI Harpal Singh were in one team and remaining
officials were in other team and both the teams proceeded towards different sides in the Satya Park.
Further, 4-5 persons from the nearby residential locality were asked to join the investigation but
none of them agreed. PW-26 further stated that there was darkness in the park and they were having
torch as the things were not very clear due to darkness. He further stated that the secret informer
was left at the Shadipur flyover Sessions Case No. 57328/16 Page 65/113 by the IO before
proceeding toward Satya Park. They remained in the park for about 15 to 20 minutes. Further, from
the said park they had gone to Pandav Nagar police booth where again IO had requested some
persons from the nearby residential area to join the investigation but no one agreed. Further, the
distance between Pandav Nagar Police booth and the place of recovery of rod was about 15 meters
and there were houses in between. Further, they reached at the place of recovery at about 9.15 p.m.
On further cross-examination, PW- 26 stated that on 02.08.2013 when they left the police station, SI
Harpal was having his pistol and IO kit whereas other officials including himself (PW-26) were
having dandas. PW-26 could not tell if SI Harpal had sent any information to the police station after
their departure on 02.08.2013 till the time they returned back at around 10 p.m. PW-26 furhter
stated that the seal which was used to seal the pullandas was kept by the IO after sealing the
pullandas and was not handed over to anyone else.
88. SI Harpal (PW-27) deposed that on 23.07.2013, he joined the investigation in the present case
alongwith Inspector Arjun Singh, HC Sessions Case No. 57328/16 Page 66/113 Yudhvir, HC
Mahender and Ct. Rajbir and Ct. Ravinder. They all reached near Shadipur flyover where on the
information of secret informer, they apprehended accused Sher Khan at railway track under
Shadipur flyover. On interrogation, accused Sher Khan confessed his guilt. IO arrested the accused
vide arrest memo (Ex.PW-26/B), conducted his personal search vide personal search memo
(Ex.PW-26/C) and recorded his disclosure statement (Ex.PW-26/D). PW-27 deposed that accused
Sher Khan pointed out the place i.e. jhuggi no. A-386, Bihari Camp, Kathputli Colony, Delhi vide
pointing out memo (Ex.PW-26/A) where he alongwith his associates committed murder of Noor
Alam @ Gaira and Mehtab @ Dhanne.
89. PW-27 further deposed that on 02.08.2013, he again joined the investigation in the present case
alongwith IO/Inspector Arjun Singh. Ct. Ravinder. HC Yudhvir, HC Mahender and Ct. Rajbir. On
the information of the secret informer, they apprehended accused Farid @ Bhutwa from railway line
side, Satya Park, Shadipur flyover, Naraina road, Delhi. Accused Farid @ Bhutwa was interrogated
by the IO. IO arrested accused Farid Sessions Case No. 57328/16 Page 67/113 @ Bhutwa vide
arrest memo (Ex.PW-26/E) and conducted his personal search vide personal search memo (Ex.PW-
26/F). After interrogation, disclouser statement of accused Farid @ Bhutwa (Ex.26/G) was
recorded. Accused pointed out the place of incident i.e. A-386, Bihari Camp, Kathputli Colony vide
pointing out memo (Ex.PW26/H). Accused Farid @ Bhutwa disclosed about weapon of offence i.e.
iron pipe used in the murder of Mehtab @ Dhanne and Noor Alam @ Ghaira lying near nala (drain)
under Shadipur flyover, which was seized vide seizure memo (Ex.PW-26/I).
90. PW-27 further deposed that on 03.08.2013, he again joined the investigation in the present case
alongwith IO/Inspector Arjun Singh, HC Mahender, Ct. Ravinder and Ct. Rajbir. At the instance of
secret informer, they reached at Shadipur flyover and apprehended accused Mohd. Raza. On
interrogation, accused Mohd. Raza confessed his involvement in the crime. Accused Raza was
arrested vide arrest memo (Ex.PW27/A), his personal search was conducted vide personal search
memo (Ex.PW-27/B) and his disclouser statement (Ex.PW-27/C) was recorded. Accused pointed
out Sessions Case No. 57328/16 Page 68/113 the place of occurrence i.e. Jhuggi no. A-386, Bihari
Camp, Kathputli colony where he alongwith his associate had committed the murder of Noor Alam
@ Gaira and Mehtab @ Dhanne vide pointing out memo (Ex.PW-27/D). Accused Mohd. Raza
disclosed about the iron pipe used in commission of crime, which he had thrown under Shadipur
flyover opposite DMS depot. The iron pipe was recovered from the said spot at his instance and
seized vide seizure memo (Ex.PW- 27/E). Further, on the directions of IO, PW-27 had gone to
mortuary of DDU hospital and collected subsequent opinion and two sealed pipes and handed over
the subsequent opinion to the IO and deposited the pipes in Malkhana. PW-27 also identified the
case property i.e two iron pipes shown to him, as Ex. P-3 and Ex.P-4.
91. PW-27 was cross-examined by the counsel for the accused persons. In his cross-examination
PW-27 stated that on 23.07.2013 he joined his duties around 8-9 a.m. He was asked by the IO to
join the investigation at around 4 p.m. PW-27 remained with IO Inspector Arjun Singh from 4 p.m
to 12 midnight. Further, around 5 p.m they left Sessions Case No. 57328/16 Page 69/113 the police
station for investigation of the present case. PW-27 further stated that he had not got issued the
weapon from the police station nor any other police officials got issued the same in his presence.
Further, after leaving the police station, they had gone to Sangam Colony, Pandav Nagar and
Kathputli Colony. He further stated that the secret informer met them at about 7.30 p.m near
Shadipur flyover i.e. at the edge of the flyover near Kathputli Colony, who remained with them till
arrest of accused Sherkhan around 8.15 p.m. the secret informer pointed at the accused Sherkhan
from a distance of 20-25 meters. On further cross- examination, PW-27 stated that the place of
arrest of the accused Sherkhan was a busy place. The IO had asked HC Yudhvir and Ct. Rajbir to
take position towards Patel Nagar near railway track whereas PW-27, IO and the secret informer
had taken position on the opposite side. All of them were in uniform. On further cross-examination,
PW-27 stated that they had reached at the jhuggi of accused Sherkhan at around 9.30 p.m and
remained in the area of Kathputli colony for about 75 minutes. Further, the jhuggi of accused
Sherkhan Sessions Case No. 57328/16 Page 70/113 was found locked when they reached there and
the lock of the jhuggi was got opened by the owner of the jhuggi who was called telephonically by
the IO as he would reside in nearby area. PW-27 further stated that the lock and key of the said
jhuggi was returned to the owner.
92. On further cross-examination, PW-27 stated that he had joined the investigation on 02.08.2013
at around 4 p.m. They had left the police station around 6 p.m to reach at Kathputli Colony around
6.30 p.m. They remained at Kathputli Colony for about 1 hour and during this period no telephonic
conversation had taken place with any person. Further, they reached at Shadipur flyover at around
7.45 p.m and remained there till 8 p.m. Further, the secret informer met them at 7.45 p.m who
remained with them till the arrest of accused Farid @ Bhutwa. He further stated that they all entered
into Satya Park from the main gate situated at Naraina road. On that day, IO Arjun Singh and PW-
27 were in police uniform whereas other police officials were not in uniform. PW-27 further stated
that a secret informer was with them when they entered into the Satya Park. However, he left the
Satya Park Sessions Case No. 57328/16 Page 71/113 immediately after pointing towards the
accused Farid @ Bhutwa from a distance of about 10 meters. Further, PW-27 stated that they
reached at Kathputli Colony again at around 11 p.m and remained there for about 10 minutes. None
of the persons at Kathputli Colony agreed to join the investigation. PW-27 further stated that the
jhuggi was found locked when the accused Farid was taken over there and the said lock was got
opened by the owner of the jhuggi, who was called telephonically by the IO. Thereafter, the lock
and key of the said jhuggi was returned to the owner. Further, they left the Kathputli Colony at
around 11.15 p.m and had gone to shrub area after crossing the railway track towards Kirti Nagar
and remained there for about 20-25 minutes. PW-27 further stated that he was carrying IO's kit
while they were going towards place of recovery from Kathputli colony. The measurement of
recovered iron pipe was done by the IO in his presence. The IO had mentioned the actual length and
width/diameter of the recovered pipe. PW-27 admitted that the pipe which was recovered on that
day was having mud on it and was sealed in the Sessions Case No. 57328/16 Page 72/113 same
condition as such. Further, during the investigation on that day from 4 p.m till 11.45 p.m, public
persons were asked to join the investigation, who refused to join the same.
93. PW-27 further stated that he again joined the investigation on 03.08.2013 at around 5 p.m. On
that day, they used government gypsy to visit the nearby area in search of accused persons. They
remained present in Sangam Colony for about half an hour and had gone to Shadipur flyover on
foot alongwith secret informer. They had reached at Shadipur flyover at about 9 p.m and remained
present there till 11.30 p.m. PW-27 further stated that the secret informer had left after pointing out
the accused Raza. Further, after 11.30 p.m they had come back to the police station where PW-27
was discharged by the IO after recording his statement.
94. HC Kuldeep (PW-32) deposed that on 03.08.2013, he had joined the investigation in the present
case alongwith IO/Inspector Arjun Singh, SI Harpal, HC Yudhvir, HC Mahender and Ct. Ravinder.
On the information of secret informer, they all reached at Sahadipur flyover and apprehended
accused Mohd. Raza, who was sitting Sessions Case No. 57328/16 Page 73/113 on the stairs of
Shadipur flyover. On interrogation by the IO, accused Mohd. Raza disclosed that he alongwith his
brother Farid @ Bhutwa, Irshad and Firoz took Mehtab @ Dhanne and Noor Alam @ Gaira to the
jhuggi of accused Sher Khan, where they committed murder of Mehtab @ Dhanne and Noor Alam
@ Gaira by causing injuries with iron rod and knife. Thereafter, they had thrown their dead bodies
after wrapping the same in blanket at the railway line. Disclouser statement of accused Mohd. Raza
(Ex.PW-27/C) was recorded by the IO. IO arrested the accused vide arrest memo (Ex.PW- 27/A)
and also conducted his personal search vide personal search memo (Ex.PW-27/B). PW-32 further
deposed that thereafter accused Mohd. Raza took the police officials to the jhuggi of Sher Khan in
the area of Kathputli Colony, where he pointed out the place of occurrence and IO prepared
pointing out memo (Ex.PW-26/D). Further, accused Mohd. Raza led all the police officials opposite
DMS booth at Khatta, where he had thrown the iron rod, used in murder of Mehtab @ Dhanne and
Noor Alam @ Gaira and got it recovered. IO prepared the pullanda of said iron rod and seized
Sessions Case No. 57328/16 Page 74/113 the same vide seizure memo (Ex.PW-27/E). PW-32
identified the case property i.e. iron rod (Ex.P-4) when shown to him.
95. In his cross-examination, PW-32 stated that he was asked to join the investigation at around 7
p.m. He alongwith SI Harpal and IO left the police station at around 7.10 p.m. they reached at
Sangam Colony within 5 to 10 minutes though he could not tell by what mode they had gone to
Sangam Colony. PW-32 further stated that the secret informer remained with them for 5-7 minutes
at Sangam Colony and thereafter he accompanied them to the Shadipur flyover. PW-32 further
stated that the secret informer had left from Shadipur flyover after the accused Raza was
overpowered. On further cross-examination, PW-32 stated that the recovered rod was measured by
the IO. He could not remember if the door of the jhuggi of accused Sherkhan was locked or opened
when they were taken there by the accused. PW-32 denied the suggestions about being present on
the spot when the accused Raza was arrested or recovery was effected at the instance of accused
Raza. PW-32 Sessions Case No. 57328/16 Page 75/113 further denied the suggestions regarding
other investigation.
96. Inspector Arjun Singh (PW-33), IO of the case deposed about the proceedings at the spot on
19.07.2013 after the investigation of the case was assigned to him. He further deposed about
preparing the site plan (Ex.PW-1/C), lifting and seizing physical evidence from the spot and about
recording of statement of the witnesses. Further, PW-33 deposed that on 20.07.2013, he had gone to
the mortuary of DDU hospital for postmortem examination of the dead bodies of deceased Mehtab
@ Dhanne and Noor Alam @ Gaira. He had filled the inquest form (Ex.PW-33/A) and made
request for postmortem examination vide letter (Ex.PW- 33/B). PW-33 also recorded the statements
of relatives of deceased persons.
97. Further, on 21.07.2013, PW-33 visited the house of deceased Mehtab @ Dhanne and Noor Alam
@ Gaira and examined their family members. On 22.07.2013, eye witnesses namely, Danish @
Dillagi and Chotte Lal were examined by PW-33. On 23.07.2013, on the basis of secret information,
PW-33 arrested accused Sherkhan Sessions Case No. 57328/16 Page 76/113 vide arrest memo
(Ex.PW-26/B). He also conducted his personal search vide personal search memo (Ex.PW-26/C).
PW-33 also interrogated and recorded the disclouser statement of accused Sherkhan (Ex.PW-26/D)
and prepared the pointing out memo (Ex.PW-26/A) of scene of crime at his instance. PW-33 further
prepared site plan (Ex.PW- 33/F) and recorded the statements of witnesses. Further, on 24.07.2013,
statements under Section 164 Cr.P.C of both the eye witnesses were recorded by the learned Link
Metropolitan Magistrate on an application (Ex.PW-33/G). Further, PW-33 deposed that on
24.07.2013, he moved a request letter to FSL Rohini for inspection of scene of crime and
consequently, a team of exert inspected the spot in the presence of SI Amit Tyagi and lifted the
exhibits from there. He further stated that on 02.08.2013, accused Farid @ Bhutwa was arrested
vide arrest memo (Ex.PW-26/E). Accused Farid @ Bhutwa was arrested from Satya Park, Shadipur
flyover Naraina road where he was found lying on a bench inside the park. He was apprehended on
the identification of Ct. Ravinder, the beat constable. He recorded disclouser statement of accused
Farid Sessions Case No. 57328/16 Page 77/113 @ Bhutwa vide memo Ex. PW-26/G consequent
upon which the accused had taken them to the place of occurrence to point out the spot vide
pointing out memo (Ex.PW-26/H). PW-33 further stated that accused Farid @ Bhutwa also led them
to Shadipur flyover for recovery of weapon of offence and pointed out an iron pipe lying on the
other side of the drain situated near the Industrial area underneath the Shadipur flyover. The said
iron pipe was measured and seized vide seizure memo (Ex.PW-26/I). The said pipe was also sealed
with the seal of RTNGR I. The site plan (Ex.PW-33/M) of the place of recovery of the iron pipe was
also prepared by PW-33. He further stated that accused had also taken all of them to the houses of
co- accused persons namely, Firoz and Mustafa, who could not be found in their houses. Further,
PW-33 stated that on 03.08.2015, accused Mohd. Raza was arrested vide arrest memo (Ex.PW-
27/A) on the basis of secret information while he was found sitting on the staircase of Shadipur
flyover. The disclosure statement (Ex.PW-27/C) of accused Mohd. Raza was recorded and
thereafter, the accused had taken them to the place of occurrence Sessions Case No. 57328/16 Page
78/113 where PW-33 prepared the pointing out memo (Ex.PW-26/D). Further, accused Mohd. Raza
had taken them opposite DMS premises near Shadipur flyover and pointed out the place where he
had thrown the iron pipe, which was used as weapon of offence. The said place was searched and
one iron pipe was recovered from the said place which was measured and sealed in a cloth pullanda
with the seal of RTNGR I. PW-33 also prepared the site plan (Ex.PW-33/N) of the place of recovery
of the iron pipe. He had also recorded the statements of SI Harpal and HC Kuldeep.
98. On his further examination-in-chief, PW-33 stated about the receipt of postmortem examination
reports (Ex.PW-16/A) and (Ex.PW-16/B), preparation of scaled site plan (Ex.PW-18/A) by
Inspector Mahesh Kumar, sending of the weapon of offence to DDU hospital to obtain the
subsequent opinion of Dr. B.N Mishra, sending of viscera boxes of deceased Mehtab @ Dhanne and
Noor Alam @ Gaira to FSL Rohini for chemical analysis, sending the request letter to the Nodal
Officer, Vodafone to provide the copy of CAF and CDR of mobile number 9899619179 vide letter
(Ex.PW-
Sessions Case No. 57328/16 Page 79/113 33/R) and examining Mohd. Mustaq, the subscriber of the
said phone as well as owner of jhuggi where the accused Sherkhan was residing as tenant.
99. PW-33 further stated about obtaining NBWs in the name of accused Irshad and Firoz, who were
absconding. He also identified the entire case property while deposing before the court.
100. PW-33 was cross-examined at length by the counsel for accused persons.
Anaysis
101. An analysis of the testimonies of afore- mentioned prosecution witnesses reveal that all the
three accused persons namely Sherkhan, Farid @ Bhutwa and Mohd. Raza were arrested on
pointing out by one secret informer. Both accused Sherkhan and Mohd. Raza were arrested from
Shadipur flyover, whereas accused Farid @ Bhutwa was arrested from Satya Park, Naraina Road,
near Shadipur flyover. PW-26 did not depose about the presence of the I.O at the time of making
arrest of accused Sherkhan and as per his testimony, besides him, only SI Harpal, HC Yudvir, HC
Mahender and constable Rajbir were the members of the team which had arrested accused
Sherkhan. He further Sessions Case No. 57328/16 Page 80/113 deposed that it was SI Harpal who
had interrogated accused Sherkhan after the arrest, however, the I.O had prepared the pointing out
memo Ex.PW-26/A and arrested the accused Sherkhan vide arrest memo Ex.PW-26/B. Even the
secret informer had informed to SI Harpal and not to the I.O regarding presence of accused
Sherkhan. PW-26 in his cross- examination, further stated that it was SI Harpal who had formed two
teams which again goes to indicate that there was no mention about the presence of the I.O at the
time of making arrest of accused Sherkhan. Therefore, it becomes doubtful if the I.O was present at
the time of making arrest of accused Sherkhan or the documents pertaining to his arrest were
prepared by the I.O on the spot.
102. Further, constable Ravinder Kumar (PW-26) who was present at the time of arrest of accused
Sherkhan deposed that accused Sherkhan had disclosed about throwing the rod used in the murder
in ganda nala (drain), near railway line, whereas none of the other prosecution witnesses deposed
about this fact.
103. As far as the recovery of weapon of offence i.e iron pipes at the instance of accused Farid @
Sessions Case No. 57328/16 Page 81/113 Bhutwa and accused Mohd. Raza are concerned, as per
seizure memo Ex.PW-26/I, the total length of recovered iron pipe was 19.5 inch (49.53 cm) with 2
cm diameter and as per seizure memo Ex.PW- 27/E, the total length of recovered iron pipe was 25
inch (63.5cm) with 2 cm diameter. Both the recovered iron pipes Ex.P-3 and Ex.P-4 were produced
before Dr. B.N. Mishra (PW-16) by the I.O for obtaining subsequent opinion regarding consistency
of weapon used in the crime. Dr. B.N. Mishra (PW-16) gave his subsequent opinion vide opinion
Ex.PW-16/DA, whereby first iron pipe was found to be 59.2 cm in length and 2.2 cm in diameter
and the other pipe was found to be 50 cm in length and 2.1 cm in diameter. It is, therefore, clear that
there is marked difference in the length of iron pipes which were stated to have been recovered at
the instance of accused Farid @ Bhutwa and accused Mohd. Raza and the iron pipes which were
produced before Dr. B.N. Mishra (PW-
16) for obtaining his subsequent opinion regarding consistency of offence with the said pipes. The
submissions of learned Additional Public Prosecutor for the State to the effect that the Sessions
Case No. 57328/16 Page 82/113 measurement of iron pipes Ex.P-3 and P-4 were not done by the
I.O in a controlled atmosphere is not meritorious to cover the lapses on the part of the I.O in
handling such a crucial piece of evidence. Even in his testimony, PW-33, I.O of the case could not
explain about the difference in length of the iron pipes which makes the recovery of iron pipes
Ex.P-3 and Ex.P-4 doubtful. As mentioned earlier, Constable Ravinder (PW-26) deposed that the
iron pipe was got recovered at the instance of accused Farid @ Bhutwa at around 9.15 p.m, whereas
SI Harpal (PW-27) deposed that the same was recovered at around 11.15 p.m. Constable Ravinder
(PW-26) did not even identify any such iron pipe while deposing in the court which further raises
doubt on the prosecution version regarding recovery of weapon of offence i.e iron pipe at the
instance of accused Farid @ Bhutwa.
Motive
104. To establish the motive of the accused persons for commission of offences in the present case,
the prosecution got examined the family members of both Mehtab @ Dhanne and Noor Sessions
Case No. 57328/16 Page 83/113 Alam @ Gaira (since deceased) whose testimonies are as under:
105. Smt. Akbari Khatoon (PW-2), who is mother of deceased Mehtab @ Dhanne deposed that her
son Mehtab @ Dhanne (since deceased) had been working at Moti Nagar, Delhi in a denting-
painting workshop. In 2013, one day prior to Holi festival, a quarrel had taken place between her
son Mehtab and Khursheed brother of accused Sherkhan regarding chewing of Gutkha. During the
quarrel, accused Sher Khan and accused Farid @ Bhutwa caught hold of Mehtab @ Dhanne and
accused Bhutwa assaulted him with beer bottle. After the intervention of persons of the locality, the
matter was got compromised. At that time, accused Bhutwa threatened them by saying "ek do
mahine me he jhagde ka natija dikha dega". She deposed that after about 10-15 days of the said
incident, accused Farid @ Bhutwa had started roaming near her house and started making enquiries
from her daughter-in-law namely, Razina Khatoon wife of Mehtab @ Dhanne (since deceased)
about the timings of departure and arrival of Mehtab @ Dhanne. However, they did not inform the
police Sessions Case No. 57328/16 Page 84/113 about the same. She further deposed that on
18.07.2013 at about 9 p.m, when she reached her home after finishing her work in kothies, she
enquired from her daughter-in-law about her son Mehtab @ Dhanne (since deceased) as he had not
returned home till then. On the same day when her son Mehtab @ Dhanne did not return to home
till 11 p.m, they searched for him in the locality and made enquiry from one person namely, Pappu ,
but did not get any clue about Mehtab @ Dhanne. She further deposed that during that time, family
members of in-laws of Mehtab @ Dhanne also reached her house and informed that Noor Alam @
Gaira, brother-in-law (sala) of Mehtab @ Dhanne had also not returned home. They all kept on
searching Mehtab @ Dhanne and Noor Alam @ Gaira, but could not trace them.
106. PW-2 further deposed that on 19.07.2013, at about 7 a.m, one child from the locality had come
and informed them that her son Mehtab @ Dhanne and Noor Alam @ Gaira are lying dead near
railway line. They reached at the spot and found dead bodies of Mehtab @ Dhanne and Noor Alam
@ Gaira. They also found accused Farid @ Bhutwa Sessions Case No. 57328/16 Page 85/113
sitting near the railway line, who informed the police and thereafter ran away from the spot. Akbari
Khatoon (PW-2) deposed that both the accused persons Farid @ Bhutwa and Sher Khan were
residing in her neighbourhood. She correctly identified both of them. She also correctly identified
accused Mohd. Raza as brother of accused Farid @ Bhutwa.
107. PW-2 was cross-examined by the Ld. Counsel for the accused persons wherein she reiterated
about the quarrel between Khurshid and Mehtab @ Dhanne one day prior to the Holi festival. Her
husband Mohd. Moti and her daughter-in-law Razina Khatoon had also reached at the spot of
quarrel where accused persons namely, Farid @ Bhutwa and Sherkhan were present with Khurshid.
PW-2 further stated that accused Farid @ Bhutwa had hit Mehtab @ Dhanne with beer bottle and
had also caught hold of her husband by neck. She further stated that a complaint was made to the
police, however, with the intervention of locality person, the matter was settled. She further stated
that the compromise was made in writing which was signed by her son Sessions Case No. 57328/16
Page 86/113 Mehtab @ Dhanne and Sherkhan. On further cross- examination PW-2 stated that all
of them had gone to the police station and the police had also reached at the spot after about 10-15
minutes and at that time the accused persons had fled away from the spot. She further stated that
after settlement when all of them had come back from the police station, the accused persons had
extended threats. PW-2 further denied to have named accused Farid @ Bhutwa in the present case
due to the doubt as he had quarreled with her son one day prior to Holi in the year 2013. She further
denied that a sum of Rs. 10,000/- was given to her towards settlement.
108. Razina Khatoon (PW-6) wife of deceased Mehtab @ Dhanne deposed that one day prior to
Holi festival in the year 2013, an altercation had taken place between her husband and Khurshid and
after beating Mehtab @ Dhanne, Khurshid started running. During that time, accused Sher Khan
and accused Farid @ Bhutwa also reached there and accused Farid @ Bhutwa gave a beer bottle
blow on the head of Mehtab @ Dhanne while accused Sher Khan gave him beatings. However later
on, the matter was compromised in the police station Sessions Case No. 57328/16 Page 87/113 on
the intervention of public persons of the locality as it was festival time. Accused Farid @ Bhutwa
had threatened them by exhorting words "Mai do tin mahine me dono ko dekh lunga". PW-6 further
deposed that after that incident, accused Farid @ Bhutwa started making enquiry from her about
duty timings of her husband Mehtab @ Dhanne and her mother-in-law. Further, on 18.07.2013, her
husband Mehtab @ Dhanne had left the house at about 6.10 p.m saying that he would be coming
back within 10-15 minutes, but did not return upto 9 p.m. She told her mother-in-law about the
same and they searched for Mehtab @ Dhanne whole night, but no clue was found about him. On
19.07.2013, at about 6 a.m, one child from the locality came and informed that dead bodies of her
husband Mehtab @ Dhanne and her brother Noor Alam @ Gaira were lying near railway line,
Shadipur flyover depot. She reached there and found dead bodies of her husband Mehtab @ Dhanne
and her brother Noor Alam @ Gaira. PW-6 had also identified the clothes of deceased Mehtab @
Dhanne (Ex.P-1).
109. PW-6 was cross-examined by the Ld. Counsel for accused persons wherein she stated that
Sessions Case No. 57328/16 Page 88/113 no police complaint was made regarding the threats given
by the accused. PW-6 could not tell the dates on which accused Bhutwa had made enquiries from
her regarding her husband and her mother-in-law. On further cross-examination PW-6 stated that on
18.07.2013 her husband i.e. Mehtab @ Dhanne (deceased) had gone to his work with one of his
friends namely, Pappu and enquiries were also made from Pappu when her husband did not come
back in the night. Further, after returning from his workshop in the evening, her husband (deceased)
had gone alone in the evening stating that he would return after sometime. On her further cross-
examination, PW-6 stated that she had tried to contact her husband (deceased) on telephone on
18.07.2013 but he did not reply the call. PW-6 had also accompanied other family members for
searching her husband (deceased) during the whole night of 18.07.2013 and first of all search was
made near the flyover which is near to their house. She further stated that it takes about five minutes
to reach the house of accused Farid @ Bhutwa from their house. PW-6 further stated that the
accused Farid @ Bhutwa was named in the present case on Sessions Case No. 57328/16 Page
89/113 the basis of doubt arising out of the quarrel which had taken place one day prior to Holi. She
also volunteered to say that accused Bhutwa had threatened to see her husband within a month or
two at that time.
110. Praveen Khatoon (PW-7), mother of deceased Noor Alam @ Gaira deposed that on
17.07.2013, her son Noor Alam @ Gaira had returned home from his work place in the evening. On
that day, at about 9 p.m, her son left the house for purchasing vegetables from the market and did
not return back. While she was searching her son Noor Alam @ Gaira in the locality, she found
accused Farid @ Bhutwa standing in the gali with one more person. During the time, she came to
know that Mehtab @ Dhanne, son of her Samdhan namely, Akbari Khatoon had also not returned
home. PW-7 further deposed that on 19.07.2017, one child of the locality came and informed that
her son Noor Alam @ Gaira and Mehtab @ Dhanne were lying dead near railway line under
Shadipur depot flyover. After reaching there, she found accused Farid @ Bhutwa present at the spot,
who ran away after reaching of police officials. PW-7 Sessions Case No. 57328/16 Page 90/113 had
identified the clothes of deceased Bhutwa (Ex.P-2).
111. PW-7 was cross-examined wherein she stated about making search for her son Noor Alam
(deceased). She also denied the suggestion that accused Farid @ Bhutwa was named in the present
case only on the basis of doubt arising out of quarrel which occurred one day prior to the Holi in the
year 2013. No complaint was lodged about the threats given by accused Farid @ Bhutwa. PW-7
was also confronted with her statement (Ex.PW- 7/A) recorded under Section 161 Cr.P.C wherein
she stated to have told to the police about the accused Bhutwa running away from the spot when the
dog squad of Delhi Police had arrived. However, in her statement (Ex.PW-7/A) the word 'Dog
Squad' was not found mentioned.
112. On 20.10.2013, Mohd. Moti (PW-15) had identified the dead body of his son Mehtab @
Dhanne vide identification statement Ex.PW-15/A and dead body of Noor Alam @ Gaira vide
statement Ex. PW-15/B in DDU hospital. After postmortem, PW-15 also received the dead bodies
of both the deceased persons vide receipt Ex.PW-
Sessions Case No. 57328/16 Page 91/113 15/C. PW-15 was cross-examined by the learned
Additinal Public Prosecutor for the State after taking permission of the court as he was not
disclosing the complete facts. When cross- examined by learned Additional Public Prosecutor for
the State, PW-15 deposed that on 18.07.2013, after coming from his work place, his son Mehtab @
Dhanne again left the house and did not return till late night. They searched for Mehtab @ Dhanne
but could not trace him despite efforts. Next day i.e. 19.07.2013 at about 6a.m - 6.15 a.m, one boy
came and informed that dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were lying near
the railway line. When they reached there, they found the dead bodies lying at the spot and accused
Farid @ Bhutwa was also present there, who informed the police. However, before the arrival of
police officials, accused Farid @ Bhutwa fled away from the spot. PW-15 further deposed that in
the year 2013, one day prior to the Holi festival, a quarrel had taken place between his son Mehtab
@ Dhanne and Khurshid on the issue of Gutkha. At that time, accused Sher Khan gave beatings to
his son Mehtab @ Dhanne. Accused Farid @ Bhutwa Sessions Case No. 57328/16 Page 92/113 hit
the head of his son Mehtab with a beer bottle. Later on, the matter was got compromised in the
police station on the interrogation of neighbourers. At that time, accused Farid @ Bhutwa had
threatened his son Mehtab @ Dhanne to see him later. PW-15 also deposed that after that incident,
accused Farid @ Bhutwa threatened Farid @ Bhutwa 2-3 times and also abused him. PW-15 had
also raised suspicion towards accused Farid @ Bhutwa and accused Sher Khan for committing
murder of his son Mehtab @ Dhanne and Noor Alam @ Gaira. He also deposed about identifying
the dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira on 20.07.2013 and receiving the
dead bodies of both on the same day after postmortem examination.
113. PW-15 was also cross-examined by the Ld. Counsel for accused persons wherein he stated that
neither he nor his daughter-in-law had made any complaint to the police regarding the threats given
by accused Farid @ Bhutwa. On further cross- examination, PW-15 admitted that they had not
made any complaint to the police on 18.07.2013 raising suspicion over accused persons. On
Sessions Case No. 57328/16 Page 93/113 18.07.2013, PW-15 had not gone to the houses of the
accused persons alongwith the neighbourers. He further denied the suggestion about the accused
persons extending threats to him or his family members or to have named the accused persons under
the pressure of the police.
114. Babar Ali (PW-17), brother of deceased Noor Alam and brother-in-law (sala) of deceased
Mehtab @ Dhanne deposed that on 18.07.2013, his brother Noor Alam had left the house at about 9
p.m but did not return till 11 p.m. He alongwith his mother searched for Noor Alam, but could not
find him. Next morning, at about 6 a.m - 6.15 a.m, one boy came and informed them that dead
bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were lying at railway track near Shadipur
flyover. When they reached there, dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were
lying there and accused Bhutwa and family members of Mehtab @ Dhanne were also present there.
Accused Bhutwa informed the police at number 100 from his own mobile. However, PW-17 had
seen accused Bhutwa leaving the spot before arrival of police officials. He also deposed about
Sessions Case No. 57328/16 Page 94/113 the quarrel, which had taken place between accused Farid
@ Bhutwa and Mehtab @ Dhanne one day prior to the festival of Holi. The matter was reported to
the police and was settled thereafter. However, accused Farid @ Bhutwa had threatened Mehtab @
Dhanne to see him in future.
115. In his cross-examination, PW-17 stated that no police complaint was made about the quarrel
prior to 18.07.2013 and on 18.07.2013 also, he had not made any complaint to the police when he
could not find his brother. PW-17 also denied the suggestions regarding extension of threats by the
accused Farid @ Bhutwa or about any quarrel not taking place between accused Farid @ Bhutwa
and Mehtab. He further denied the suggestion that the accused persons were named in the present
case only on the basis of suspicion due to earlier quarrel between the accused persons and Mehtab
(deceased).
116. On 25.03.2013, on receipt of DD No. 32 A (Ex.PW-19/A) regarding quarrel and snatching, ASI
Jai Chand (PW-19) had reached at Shadipur flyover depot where he met one person namely Aftab.
On enquiry, ASI Jai Chand came to know that there Sessions Case No. 57328/16 Page 95/113 was
petty quarrel between Khurshid and Aftab. Later on, on the intervention of their parents, the matter
was amicably settled. After returning to police station, PW-19 lodged DD No.7B (Ex.PW- 19/B) in
this regard.
117. PW-19 was not cross-examined by the Ld. Counsel for accused persons.
Analysis
118. On perusal of the testimonies of afore- mentioned prosecution witnesses, it is revealed that in
the year,2013, one day prior to Holi festival, some quarrel had taken place between Mehtab @
Dhanne and Khurshid, brother of accused Sherkhan wherein accused Sherkhan and accused Farid
@ Bhutwa also got involved, however, with the intervention of the persons of the locality and the
police officials, the matter was compromised between them. As per the above-mentioned
prosecution witnesses, accused Farid @ Bhutwa started nursing grudges against Mehtab @ Dhanne
due to the said quarrel and had also threatened to take revenge within 2-3 months.
119. As is clear from the testimonies of afore- mentioned prosecution witnesses, the initially
Sessions Case No. 57328/16 Page 96/113 quarrel had taken place between Mehtab @ Dhanne and
Khurshid, brother of accused Sherkhan. After the said quarrel, no further quarrels were deposed by
any of the prosecution witnesses involving Mehtab @ Dhanne and Noor Alam @ Gaira (since
deceased) and the accused persons. No report about any threat extended by accused Farid @
Bhutwa was ever lodged with the police authorities by any of the afore-mentioned prosecution
witnesses which goes to indicate that the threats, if are assumed to be there, were not of such a
gravity so as to raise alarm to any of the prosecution witnesses or even to Mehtab @ Dhanne
(deceased). Even otherwise, no family member of the deceased persons visited the houses of the
accused persons situated nearby in the same locality, to enquire their whereabouts when they were
making search for them. It again goes to indicate that the suspicion raised over the accused persons
was not justified and was not warranted. Further, Razina Khatoon (PW-6) categorically deposed that
the accused Farid @ Bhutwa was named in the present case merely on the basis of doubt which was
entertained due to said quarrel. It also does not appeal to Sessions Case No. 57328/16 Page 97/113
common sense, if the said quarrel had taken place between Mehtab @ Dhanne and Khurshid,
brother of accused Sherkhan, why said Khurshid was not got involved by the accused persons for
eliminating Mehtab @ Dhanne (deceased). Moreover, there is not an iota of evidence to indicate
towards any grudge entertained by the accused persons towards Noor Alam @ Gaira (deceased). No
explanation is coming forward out of testimonies of any prosecution witnesses including PW-33,
I.O of the case why Noor Alam @ Gaira (deceased) could have been murdered by the accused
persons. Furthermore, there is no witness who might have seen both Mehtab @ Dhanne and Noor
Alam @ Gaira (since deceased) together on that fateful night. As observed above, the testimonies of
both the eye-witnesses namely Chhote Lal (PW-11) and Danish @ Dillagi (PW-12) are not
trustworthy in this regard who even failed to identify the accused Farid @ Bhutwa and accused
Mohd. Raza. Therefore, in view of the above-discussed testimonies of prosecution witnesses, in my
considered opinion, the prosecution failed to establish any motive on the part of the accused
Sessions Case No. 57328/16 Page 98/113 persons for commission of offence of murder of Mehtab
@ Dhanne and Noor Alam @ Gaira. Forensic Witnesses
120. Shri Amit Rawat, Assistant Director, Chemistry, FSL, Delhi (PW-29) deposed that on
03.09.2013, two sealed parcels sealed with the seal of DDU hospital alongwith sample seal of case
FIR No. 153/13 PS Ranjit Nagar were marked to him. On opening parcel no.1, three exhibits
pertaining to viscra of Mehtab @ Dhanne i.e. Ex.1A, Ex.1B and Ex.1C were found and on opening
parcel no.2, three exhibits pertaining to viscera of Noor Alam @ Gaira i.e. Ex.2A, Ex.2B and Ex.
2C were found. On chemical and GCHS examination, exhibits 1A, 1B,1C, 2A, 2B and 2C were
found to contain ethyl alcohol while exhibits 1C and 2 C were found to contain ethyl alcohol 196.5
mg/110 ml of blood and 33.4 mg/100 ml of blood respectively. PW-29 proved his report (Ex.PW-
29/A).
121. PW-29 was not cross-examined by the counsel for accused persons.
122. Shri Indresh Kumar Mishra, Director Biology, FSL, Rohini, Delhi was got examined as (PW-
30). He had deposed that on 03.09.2013, 13 Sessions Case No. 57328/16 Page 99/113 sealed
pullandas pertaining to case FIR No. 153/13 PS Ranjit Nagar were assigned to him for biological
and serological examination. He mentioned the details of exhibits, contained in the pullandas in his
report (Ex.PW-30/A). On biological examination of exhibits, he prepared his detailed biological
report (Ex.PW-30/A) and on serological examination, he prepared his detailed serological report
(Ex. PW-30/B), wherein human blood was detected on all exhibits except Ex.2 and 4 (Earth
Control).
123. In his cross-examination, PW-30 stated that he received the pullandas for the purpose of
examination, however, he could not tell the time and date when the same were received. He further
stated that he could not tell without seeing the concerned FSL file.
124. It is clear from the viscera examination of dead bodies of both Mehtab @ Dhanne and Noor
Alam @ Gaira that ethyl alcohol was found present. There is no material to show if the blood group
of both the deceased persons matched with the blood group found on the afore-mentioned exhibits.
Sessions Case No. 57328/16 Page 100/113 Electronic Evidence
125. Shri Israr Babu (PW-23), Alternate Nodal Officer, Vodafone Mobile Service Ltd. deposed that
prepaid connection of mobile phone number 9899619179 was issued to one Mohd. Mustak son of
Mohd. Gufur R/o F-441, Kathputli Colony, Pandav Nagar, Delhi on the basis of driving license.
PW-23 identified the Customer Application Form of above-said mobile number (Ex.PW-23/A) and
driving license attached with the Customer Application Form (Ex.PW-23/B). He filed the attested
copy of call details of above-said mobile number for the period w.e.f 15.07.2013 to 20.07.013
(Ex.PW-26/C). PW-23 deposed about issuing a certificate under Section 65B of the Indian Evidence
Act (Ex.PW-23/D) in respect of CDR of mobile phone number 9899619179.
126. PW-23 was not cross-examined by the Ld. Counsel for accused persons.
127. Mohd. Mushtaq, brother of accused Farid @ Bhutwa was examined as (PW-10). He deposed
that Sessions Case No. 57328/16 Page 101/113 he had given mobile number 9899619179, which
was in his name, to his mother in the year 2006. He deposed that he had left his house about 6-7
years ago and had been living at Pandav Nagar, Delhi. PW-10 was cross-examined by the learned
Additional Public Prosecutor for the State with the permission of the court as he was not disclosing
the complete facts. In his cross-examination by the learned Additional Public Prosecutor for the
State he denied the suggestion that he had given the SIM pertaining to Vodafone number 989961
9179 to his brother accused Farid @ Bhutwa. However, he stated that his brother accused Farid @
Bhutwa was residing with his mother.
128. In his cross-examination by the learned Counsel for accused persons, PW-10 stated that he
never stated to the police that he had given the above-mentioned SIM number to his brother Farid
@ Bhutwa.
129. As is clear from the testimony of Sh. Israr Babu (PW-23), the mobile phone number
9899619179 was subscribed in the name of Mohd. Mushtaq. PW-23 deposed about the call details
record Ex.PW-26/C pertaining to the said mobile Sessions Case No. 57328/16 Page 102/113
number, whereby a call at 100 number was made from the said mobile number. However, as per the
testimony of Mohd. Mushtaq (PW-10), it could not be established if mobile number 9899619179
was being used by accused Farid @ Bhutwa on the relevant date.
Deposition of case property
130. HC Surender (PW-21), the MHC(M) deposed about deposition of case property in Malkhana
on various dates. On 19.07.2013, IO/Inspector Arjun Singh had deposited 6 pullandas duly sealed
with the seal of RTNGR-I about which PW-21 made an entry at serial no. 533 in register no.19
(Ex.PW- 21/A). Again on 24.07.2013, IO/Inspector Arjun Singh deposited 7 parcels sealed with the
seal of DDU hospital in the Malkhana. PW-21 had deposited the same and made entry at serial no.
534, register no. 19 (Ex. PW-21/B). On 24.07.2013, SI Amit Tyagi had deposited 3 parcels sealed
with the seal of RTNGR-II, which PW-21 deposited and made entry at serial no. 536 in register no.
19 (Ex.PW-21/C). On 02.08.2013, IO/Inspector Arjun Singh had deposited 2 parcels sealed with
seals of RTNGR-I, which were deposited by PW-21 vide Sessions Case No. 57328/16 Page 103/113
entry made at serial no.542 and 543 respectively in register no.19 (Ex.PW-21/D). Further, on
19.08.2010, on the directions of the IO, one sealed parcel of iron pipe was got deposited in DDU
hospital through Ct. Bijender vide RC No. 74/21/13 (Ex.PW-21/F). Again, on 03.09.2013 on the
directions of IO, 14 sealed parcels were got deposited with FSL Rohini through Ct. Chander Bhan
vide RC No. 89/21/13 (Ex.PW-21/G). On the same day, two sealed parcels were also got deposited
with FSL Rohini vide RC No. 88/21/13 (Ex.PW-21/H).
131. In his cross-examination, PW-21 could not tell the time when the case properties were
deposited in the Malkhana by the IO on 19.07.2013 and on the other dates. He further stated that on
19.08.2013 one sealed pullanda deposited on 02.08.2013 was given to Ct. Bijender for sending to
DDU hospital against RC no. 74/21/13. He further stated that as per record, Inspector Arjun Singh
had not taken the pullandas on 19.08.2013 for sending it to DDU hospital. On further cross-
examination, PW-21 stated that Inspector Arjun Singh had not deposited the pullandas in the
Malkhana on Sessions Case No. 57328/16 Page 104/113 26.08.2013. PW-21 also stated that the IO
could access the Malkhana at any point of time and between 19.07.2013 to 03.09.2013 Inspector
Arjund Singh used to visit Malkhana.
132. Constable Chander Bhan (PW-22) deposed that on 03.09.2013, he received the case property
i.e. two sealed Viscera and 13 sealed biological exhibits alongwith forwarding letter from the
MHC(M) PS Ranjit Nagar vide RC No. 88/21/13 dated 03.09.2013 & R.C No.89/21/13 dated
03.09.2013 for depositing the same in FSL, Rohini. Accordingly, PW-22 deposited the above-
mentioned case property in FSL, Rohini and handed over the copy of road certificate and receipt of
FSL, Rohini to the MHC(M) PS Ranjit Nagar.
133. PW-22 was not cross-examined by the Ld. Counsel for accused persons.
134. Constable Bijender Singh (PW-13) deposed that on 19.08.2013, on the directions of IO, he had
taken two pullandas sealed with the seal of RTNGR 1 from Malkhana vide RC No. 74/21/13 with
one request letter and other documents to the mortuary of DDU hospital and handed over the same
to Dr. B.N Mishra, Medical Officer of DDU hospital. He Sessions Case No. 57328/16 Page 105/113
had received a receipt in this regard, which he handed over to MHC(M).
135. In his cross-examination, PW-13 stated that he had received the pullandas and documents at
around 10.30 a.m and the said pullandas were handed over to Dr. B.N Mishra at around 12 noon. He
had also given the receipt/acknowledgment given by the doctor to the MHC(R).
Lapses in Investigation
136. In the light of afore-discussed testimonies of prosecution witnesses and facts and
circumstances of the case, various lapses in conduct of investigation by the I.O have surfaced which
affect the prosecution case adversely. For instance, the presence of dog squad on the spot where the
dead bodies of Mehtab @ Dhanne and Noor Alam @ Gaira were found lying could not be
established though one of the contentions of the prosecution was that accused Farid @ Bhutwa had
fled away from the spot after arrival of the dog squad fearing that the dogs may lead upto him. Any
such dog handler was not even cited or got examined by the prosecution. Even the photographs
taken on the Sessions Case No. 57328/16 Page 106/113 spot do not show the presence of any dog
squad on the spot.
137. Further, according to the prosecution version, the accused persons had wrapped the dead
bodies of Mehtab @ Dhanne and Noor Alam @ Gaira in one blanket to carry them from the jhuggi
of accused Sherkhan to the spot near railway tracks and afterwards in order to destroy the evidence,
the said blanket was burnt on the railway tracks. However, on perusal of photographs Ex.PW-3/B-
4,B-6,B-8,B-9,B-10, B-17 and B-22, one blanket is clearly visible lying near the dead bodies. The
said blanket was not seized by the I.O, nor is there any explanation about the said blanket, rather, it
was proposed that the blanket was burnt on the railway tracks. Non-seizure of said blanket which
could have proved to be a crucial piece of evidence in the chain of circumstances sought to be
established by the prosecution was not explained by the I.O for the reason best known to him.
138. Next, in personal search of Noor Alam @ Gaira (deceased), one mobile phone with SIM card
was recovered vide memo Ex.PW-1/E, however, the I.O did not bother to obtain the call details
Sessions Case No. 57328/16 Page 107/113 record or location chart of the said mobile number so as
to ascertain the presence of Noor Alam @ Gaira on the fateful night.
139. Further, according to the prosecution version, besides Chhote Lal (PW-11) and Danish @
Dillagi (PW-12), there were other persons also who had witnessed the incident, however, none of
them was interrogated or examined. Nor there is any explanation furnished by the I.O for not doing
so.
140. As observed earlier, not a single evidence about prior meeting of mind to enter into a criminal
conspiracy between the accused persons to commit murder of both Mehtab@ Dhanne and Noor
Alam @ Gaira could be obtained by the I.O during investigation. It could not be even established, if
both Mehtab @ Dhanne and Noor Alam @ Gaira were together on the fateful night, though there
was considerable gap between both of them leaving their respective houses and the unfortunate
incident which happened with them.
141. It was also discussed earlier how the presence of the I.O became doubtful at the time of
making arrest of accused Sherkhan and preparation of documents in this regard.
Sessions Case No. 57328/16 Page 108/113 Conclusion
142. As per the settled prepositions of the law, it is a cardinal principle of criminal jurisprudence
that the guilt of the accused must be proved beyond all reasonable doubts. In Sharad Birdhichand
Sarda v. State of Maharashta (1984) 4 SCC 116, which is considered a locus classicus on
circumstantial evidence, it was laid down that the facts so established should be consistent only with
the hypothesis of the guilt of the accused and they should not be explainable on any other
hypothesis except that the accused is guilty. Further, the circumstances should be of a conclusive
nature and tendency and there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused. Another golden thread
which runs through the web of the administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other
to his innocence, the view which is favourable to the accused should be adopted. (Reliance placed
on Kali Ram v. State of Himachal Pradesh (1973), 2 SCC, 808 and Upender Pradhan v. State of
Orissa (2015), 11 SCC, 124).
143. From the entire facts and circumstances, it has been established that Mehtab @ Dhanne Son of
Mohd. Moti and Noor Alam @ Gaira Son of Mohd. Gannuar died in the intervening night of
18/19.7.2013. Their dead bodies were duly identified by PW Mohd. Moti (PW-15). As per
postmortem examination report Ex.PW-16/A, both Mehtab @ Dhanne and Noor Alam @ Gaira had
suffered injuries on their persons which were found sufficient to cause the death in ordinary course
of nature. Their death was also homicidal. The points for determination no.1,2 and 3 are accordingly
decided.
144. In the light of afore-discussed testimonies of prosecution witnesses and other material
available on record, it is also clear that there is no evidence to show if the accused persons entered
into a criminal conspiracy with each other to cause the Sessions Case No. 57328/16 Page 110/113
death of both Mehtab @ Dhanne and Noor Alam @ Gaira. Similarly, there is no evidence available
on record to establish that the accused persons caused the evidence of commission of murder to
disappear in order to screen themselves from the legal punishment. As discussed earlier, the
prosecution miserably failed to establish the existence of motive on the part of accused persons to
commit the murder of Mehtab @ Dhanne and Noor Alam @ Gaira. Further, both the eye-witnesses
namely Chhotey Lal (PW-11) and Danish @ Dillagi (PW-
12) resiled from their statements recorded under Section 164 Cr.P.C which makes their testimonies
unreliable and not credit-worthy. The arrest of the accused persons and the recovery of weapon of
offence at their instance was also doubtful, particularly, in view of difference in size of recovered
iron pipes Ex.P-3 and Ex.P-4 and the iron pipes which were sent to Dr. B.N. Mishra (PW-16) for his
subsequent opinion regarding consistency of weapon of offence. On the whole, the prosecution
story is not free from doubt and the chain of circumstances put forward by the prosecution is not
complete, pointing unerringly Sessions Case No. 57328/16 Page 111/113 towards the accused
persons and only the accused persons who can be held liable for commission of offences alleged.
145. The points for determination no.4, 5, 6 and 7 are accordingly decided against the prosecution.
146. In the given facts and circumstances as discussed above, I extend the benefit of doubt to the
accused persons namely Sherkhan son of Mohd. Jamal Master, Farid @ Bhutwa and Mohd. Raza,
both son of Mohd. Abdul Gafur and acquit them.
147. Bail bonds under Section 437-A Cr.P.C were furnished by the accused persons with
photograph and residential proof of their respective sureties.
148. Family members of Mehtab @ Dhanne and Noor Alam @ Gaira (deceased persons) are hereby
referred to District Legal Service Authority, West, for consideration of suitable compensation
amount.
Sessions Case No. 57328/16 Page 112/113
149. In view of Section 365 Cr.P.C, a copy of the judgment be also sent to District Magistrate
concerned for his information.
150. A copy of the judgment be also sent to worthy Commissioner of Police, Delhi, for his perusal
and necessary action.
(Pronounced in the open (Kuldeep Narayan) Court on 19-08-2017 ). Addl. Sessions Judge (Pilot
Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 57328/16 Page 113/113

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Cites 20 docs - [View All]
The Limitation Act, 1963
Article 137 in The Constitution Of India 1949
Article 181 in The Constitution Of India 1949
The Indian Succession Act, 1925
Section 63 in The Indian Succession Act, 1925

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Delhi District Court
Sh. Vinay Sakhuja vs State on 4 March, 2017

IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT JUDGE


(WEST)-02, TIS HAZARI COURTS:DELHI

Old P.C No. 95/10/05


New P.C. No. 15956/16

Sh. Vinay Sakhuja


S/o Shri Suraj Prakash Sakhuja
R/o B-2/52, Safdarjung Enclave,
New Delhi 110029
......
Petitioner

Versus

1. State

2 Shri Vijay Sakhuja


S/o Sh. Suraj Prakash Sakhuja
R/o B-2/52, Safdarjung Enclave,
New Delhi-110029

3 Smt. Usha Bajaj


W/o Sh. Gulshan Bajaj
R/o K-25/B, Kalkaji,
New Delhi

4 Sh. Ramesh Sakhuja


S/o Shri Gian Chand Sakhuja
R/o 77, Janta Colony,
Jaipur

5. Sh. Anil Sakhuja


S/o Shri Gian Chand Sakhuja
R/o 77, Janta Colony,
Jaipur

PC No. 95/10/05 Vinay Sakhuja Vs State & Ors


1/74
6. Smt. Swarn Sachdeva
W/o Sh. Khairati Lal Sachdeva
R/o C-4C, Pocket 8, Janakpuri,
New Delhi

7. Smt. Kamlesh Bhasin


W/o Sh. Gulshan Bhasin
R/o D-24, Kirti Nagar,
New Delhi

8. Smt. Guddi
W/o Sh. Deepak Malik,
R/o D-171, New Rajinder Nagar,
New Delhi

...
Respondents

Date of original institution of the case :


17.11.2005
Date of reservation of order :
25.02.2017
Date of pronouncement of judgment :
04.03.2017

JUDGMENT:

1 A petition under Section 276 of Indian Succession Act, (XXXIV of 1925) for grant of Probate
with the will annexed has been filed.
2 In brief the facts are that deceased Satyapal Sakhuja S/o late Sh. Lakshmi Chand ( hereinafter
referred to as 'deceased') left for his heavenly abode on 14.05.1995. The deceased at the time of his
death a fixed place of abode at B-2/52, Safdarjung Enclave, New Delhi.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 2/74 3 It is stated that
the writing herewith annexed as Annexure "B" is the last Will and Testament of the deceased and
was duly executed by him in the presence of witnesses named in the said will. The said Will dated
15.01.1989 was duly registered at the office of Sub-Registrar, Delhi bearing document No. 26223,
Addl. Book No. III, Volume 2384, pages 67 to 68 on 08.06.1995. The said Will is the true last Will
and Testament of the deceased.
4 It is stated that petitioner is the executor named in the said Will and is nephew of the deceased
Shri Satyapal Sakhuja. The deceased did not marry during his life time and his parents had
predeceased him. The deceased is survived by the legal representatives, the list whereof is annexed
herewith as Annexure "B". There is no other legal heir and next of kin according to Hindu Law
applicable to him, apart from those as mentioned in Annexure "B". The properties of the deceased
have been truly set forth in the Schedule annexed to this petition and marked Annexure "C".
5 It is stated that petitioner alongwith his brother Shri Vijay Sakhuja had earlier filed a petition for
grant of succession certificate in respect of the debts and securities of the deceased. In the said
petition the copy of the Will was also annexed alongwith the list of documents. The other legal
representatives of the deceased appeared and filed their written statement, however, the said petition
was dismissed in default on 10.09.1996.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 3/74 6 It is stated that
as per the Will the deceased had bequeathed the property No. B-2/52, Safdarjung Enclave, New
Delhi to Smt. Sangeeta Sakhuja, wife of Shri Vijay Sakhuja and Smt. Meenu Sakhuja, wife of
petitioner in equal share. Subsequently, Shri Ramesh Sakhuja, one of the legal representatives of the
deceased filed a petition under Section 278 for Grant of Letters of Administration to the estate of
the deceased. However, in the said petition Shri Ramesh Sakhuja made a false statement that the
deceased had died intestate. The present petitioner had been made a respondent in the said petition
and were proceeded ex- parte vide order dated 07.05.2001 by this court. Thereafter, the petitioner
moved an application under order IX Rule 7 read with Section 151 CPC for setting aside the ex-
parte proceedings, however the said application was dismissed vide order dated 19.07.2005. Against
the said order, the petitioner filed a civil revision petition bearing No. 368-69 of 2005 before the
Hon'ble High Court of Delhi, however, the said petition was dismissed vide order dated 21.09.2005.
7 It is stated that in the previously instituted petition filed by Shri Ramesh Sakhuja and others
bearing P.C No. 98/1999, it has not been disclosed that the deceased Shri Satyapal Sakhuja had left
behind a Will dated 15.01.1989. Petitioner seeks Probate to the annexed Will.
8 Upon filing the present petition, notice of the same was issued to all respondents/LRs of the
deceased. And notice was also
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 4/74 served to the
concerned Collector/SDM accordingly Tehsildar Vasant Vihar filed the valuation report of the
property bearing No. B-2/52, Safdarjung Enclave and assessed the market value of the same as Rs.
45,39,620/-.
9 It is pertinent to mention here that In this petition respondent no. 2 Sh. Vijay Sakhuja and
respondent no. 3 Smt. Usha Bajaj filed NOC in favour of the petitioner.
10 Respondent no. 4 to 8 filed reply/written statement/objections to the probate case and stated that
present petition and case set up by the petitioner is absolutely false, frivolous, improbable and an
apparent abuse of the process of court. The Will propounded by the petitioner as an Executor is
sham and bogus not being genuine and a valid will of the deceased and taken preliminary
objections.
11 It is stated that deceased was the uncle of petitioner and his brother Sh. Vijay Sakhuj, while Smt.
Meenu Sakhuja and Smt. Sanjeeta Sakhuja, shown to have been beneficiaries Legatees in the said
will are their respective wives. The respondent no. 4,5,6,7 & 8 are also the nephews and nieces of
the deceased being children of his second brother late Sh. Gian Chand Sakhuja.
12 It is stated that deceased was the owner of property bearing No. B-2/52, Safdarjung Enclave,
New Delhi and despite highly educated and retired Class I official in government service did
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 5/74 not get married
through out his life. He was very found of jogging, writing, typing, going to temple and reading
books and going to temples and religious places like Haridwar and Rishkesh etc. 13 It is stated that
father of the petitioner and brother of the deceased Sh. Suraj Prakash Sakhuja was not having
enough income to survive, nor had any house of his own. Since the deceased was living alone in the
said house. Once Sh. Suraj Prakash Sakhuja and his wife (father & mother of the petitioner)
requested the deceased for temporary accommodation till another accommodation is arranged. The
deceased was very kind and generous person hence he permitted them to stay therein for a short
period and that is how they encroached/entered into the said house of the deceased and never
vacated the house, despite repeated requests and quarrels. Though parents of the petitioner ever
cared or bothered much for the deceased and also stopped providing food and even glass of water to
the deceased. The petitioner always treated the deceased hatedly and neglected. 14 It is stated that
deceased was ill treated all along and was meted out maltreatment and misbehaviour and that too
with occasional abusing persistently. It is stated that respondents were having very good relations
with their deceased uncle and whenever they visited the deceased use to tell the tale of what had
happened with him and about the treatment meted out to him. The respondents always requested the
deceased to come and stay with them but the deceased never wanted to move because of his great
affection with the house.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 6/74 15 It is stated that
the deceased was very upset especially taking the house issue. He always used to tell that he does
not want to give a single penny or even a small part of the said house to the petitioner and other
members of their family. It is stated that deceased never told about any such Will either to any of the
above respondents or to any other know person despite being specifically asked, while he himself
disclosed the factum of previous will to the respondent immediately after its execution. It is stated
that once when the deceased was in hospital, he complained to the respondent Ramesh Sakhuja
about some fraud played on him. He was having doubt that the petitioner ( Mr. Vinay ) got some
papers signed when he was under the influence of sleep/medicines in the Hospital in the garb of
share forms and certificates.
16 It is stated that deceased had also made a declaration before the relatives that Vinay should not
touch his body and lit pyre after his death. The deceased could not visit the relatives (respondents
etc.) after 1993 because of major health problem, tension and agony. However, respondents kept on
visiting the deceased occasionally even after 1993 despite objection by the petitioner. It is stated
that deceased was a pensioner and because of the costly treatments and medicines as also
hospitalization, the deceased took some money from the respondent Ramesh Sakhuja and his
brother and because of the financial problems, the deceased had also rented out the entire ground
floor of the said house, except a small portion.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 7/74 17 It is stated that
about one and a half year of the deceased was like a hell but the above respondents were really
helpless. The ailments, poor care and irregular and bad diet made the condition of the deceased
worst in last few months. He became very weak in body and mind and was incapable to move and
understand his affairs. It is stated that deceased died intestate on 14.05.1995 near Darya Ganj due to
severe heart attack. The love, affection and care, the petitioner and so called legatees had for the
deceased is self explanatory and evident from the fact that neither the petitioner nor Mr. Vijay, Smt.
Sangeeta and Smt. Meenu had even tried to find out the where abouts of the deceased for two days
and two nights when he did not turn up from the court.
18 It is stated that the petitioner even after having came to know about the death of the deceased,
did not even inform other relatives and respondents. The petitioner neither informed any other
relative nor performed the last rites of the deceased and the deceased had to be cremated at
Electrical Crematorium and at the Chotha, no Pagri Rasem or any other ceremony was performed.
Not only that, not even a single ceremony was performed by the petitioner and his family member
at the house where deceased used to reside.
19 It is stated that really surprising and worth mentioning that on 31.05.1995, just after 16 days
from the date of death of the deceased, petitioner was waiting for, filed a Succession Petition in the
court of ACJ, Delhi, instead of filing a Probate of the alleged and
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 8/74 so called Will. In
fact the petitioner played a fraud on the respondents and the court as he except some movable items,
did not even make mention of the house and the will and claim for the immovable property. The
petitioner tired to convince the above respondents that they did not pray for immovable property
and the amount under the succession is also very less, therefore, they should file their NOC. But the
above respondents when refused to give any such NOC, the petitioner instead of withdrawing the
same, thought it expedient and considered it beneficial to let the petition be dismissed and
intentionally got the said petition dismissed and never tried to get the same restored.
20 It is stated that if the petitioner had the so called Will of the deceased, then they did not seek any
probate. It has also come to the knowledge that he had already got the property mutated/substituted
in the names of Ms Sangeeta Sakhuja and Ms Meenu Sakhuja. It is worth mentioned that DDA does
not grant mutated on the basis of Will unless probate has been obtained or all the legal heirs filed
their no objection.
21 It is stated that when nothing could be settled, the respondents above named filed a Petition for
grant of letter of administration in the court of District Judge bearing P.C No. 328/05 tilted Ramesh
Chand Sakhuja & Others Vs State & others is still pending adjudication in this court. It is stated
petitioner contended first time about Will in the Revision Petition filed by him in the High Court
subsequently, which was also dismissed by the High Court.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 9/74 22 It is stated that
Will propounded by the petitioner is a bogus and sham document and cannot be acted and relied
upon because it's execution is also surrounded by many suspicious circumstances. Not only that, the
will itself is containing unusual features. The registration of the so called Will was not being done
for nine years despite the fact the deceased and petitioner were aware of its importance. The
petitioner set up the will after the death of the deceased and got it registered after his death, which
was got no meaning or value.
23 It is stated that deceased, the beneficiary Ms Sangeeta Sakhuja illegally and unauthorisedly
joined the litigation of the tenant by representing herself to be the owner of the ground floor and
illegally received rent from the tenant, sought eviction and also initiated contempt proceedings
against the tenant. They misled the court by suppressing the real facts and abused the process of law
by not disclosed the fact to the court that two cases ( probate) are pending adjudication before the
Probate court, which resulted in miscarriage of justice.
24 It is stated that unexplained delay in filing the probate and bringing the so called Will on record,
while there were many occasions, itself shows that the case of the petitioner and will set up by him
in collusion with other interested persons is false and sham. The facts stated are absolutely different
and a variance with the facts in real life. The deceased was so intelligent that he was aware of the
importance of the registration and such other aspects. Not only that, there is no thumb impression of
the deceased on the so called will.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 10/74 25 It is stated that
the witnesses alleged and shown to have witnesses are being kept by the petitioner as per his own
convenience and each one of them is required to be examined irrespective to excuse of their
unavailability to ascertain the genuineness of the Will. It is also observed apparently and without
any assistance and opinion of any hand writing expert that the signatures of one witness on the Will
and on petition are absolutely different and does not match with each other.
26 On merit also all the contents of the petition are either stated to be matter of record or denied and
genuineness of the Will is denied and it is stated that said Will registered after the death of the
deceased. It is stated that petitioner is not entitled to any relief as claimed and the petition filed by
the petitioner be dismissed with cost.
27 Petitioner filed rejoinder to the reply/written statement filed by respondents no. 4,5,6,7 and 8 and
denied all the objections raised by the respondents and reiterated the facts mentioned in the petition.
28 On the pleadings of the parties, my ld. Predecessor framed the issues vide order dated
14.07.2008. Thereafter while deciding the application of respondent no. 4 to 8 the issues were
amended vide order 21.11.2015. The amended issues are as follows:-
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 11/74
1. Whether the Will dated 15.01.89 executed by late Sh. Satyapal Sakuja was his last Will and
testament and duly executed by the testator in sound disposing mind and is legal and valid? OPP
2. Whether the Will in question is forged and fabricated and is surrounded by various suspicious
circumstances as mentioned in written statement of the respondents no. 4 to 8 and if so, its effect?
OPR 4 TO 8
3. Whether petition is liable to be rejected on the ground of difference of signatures of the attesting
witnesses appended on the petition in compliance of Section 281 of Indian Succession Act? OPR 4
to 8
4. Whether the petitioner concealed the material facts regarding the relations of the deceased and if
so, its effect? OPR 4 TO 8
5. Whether the present petition is barred by limitation? OPR 4 TO 8
6. Whether the petitioner is entitled for grant of probate/letter of administration as prayed for? OPP
7. Relief 29 In order to prove his case petitioner examined Sh. Hemant Talwar as PW-1, Sh. Raj
Kumar, Inspector Food and Civil
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 12/74 Supplies
Department as PW-2, Sh. Jagdish Kumar, Record Clerk as PW-3, Sh. D.S. Rana, Chief Section
Supervisor, MTNL as PW-4 and Sh. Laxmi Narain, Record keeper as PW-5, Sh. Ravi Shankar,
LDC, Record Room ( Civil) as PW-6 and petitioner Vinay Sukhija appeared himself as PW-7. Vide
separate statement of the petitioner on 02.05.2016, evidence on behalf of petitioner was closed.
30 Respondent no. 4 to 8 in order to prove their objections examined respondent no. 4 as RW-1, Sh.
Sant Ram, Assistant from LAB Residential, DDA as RW-2, Sh. Manoj Kumar, LDC from Sub-
Registrar as RW-3, Sh. M.N. Sharma as RW-4, Sh. Vinod Khanna as RW-5, Dr. V.C. Mishra,
Handwriting Expert as RW-6 and Shri Ajay Anand from the office of Sub-Registrar as RW-7.
31 Before taking up the issues let us peruse the testimony of all the witnesses examined by
petitioner and respondent no. 4 to
8. 32 In order to prove his case petitioner examined Sh. Hemant Talwar as PW-1 who tendered his
evidence by way of affidavit Ex. PW-1/A. In his affidavit he deposed that he is Chartered
Accountant by profession and doing his own practice. He deposed that his sister Smt. Sangeeta
Sakhuja is married to Shri Vijay Sakhuja on 13.12.1982, who is brother of the petitioner and
respondent no. 2. Late Shri Satyapal Sakhuja is the uncle of the petitioner as well as respondent no.
2. He deposed that since the marriage of her sister he has been a frequent visitor at the
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 13/74 residence of late
Shri Satyapal Sakhuja, deceased I.e premises bearing No. B-2/52, Safdarjung Enclave, New Delhi.
He had know the deceased much prior to the marriage of her sister as the deceased, testator as well
as his father were colleagues in the same office and were having friendly relations.
33 He further deposed that deceased did not marry during his life time and was resided with Shri
Vijay Sakhuja and Shri Vinay Sakhuja and their wives and children at B-2/52, Safdarjung Enclave,
New Delhi. In the year 1989, a few days prior to execution of the Will, deceased called him at his
residence expressing his intention to execute a Will. He asked his consent whether he would like to
witness his will or not. He told him that he will definitely witness his said Will. Thereafter deceased
told him that he would prepare the Will and requested him to come to his residence on 15.01.1989
for attesting the same.
34 He further deposed that on 15.01.1989 he reached the residence of deceased. On his reaching his
brother in law, Shri Vijay Sakhuja, his sister, Smt. Sangeeta Sakhuja and Shri Sudhir Mehta were
already present there. The deceased introduced him to Shri Sudhir Mehta as his acquaintance and
intimate him that he would be the other attesting witness to his will.
35 He further deposed that deceased had already got prepared his will and executed the said Will in
his presence and in the presence of other witness, namely, Shri Sudhir Mehta. The
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 14/74 deceased was in
sound disposing mind at the time of execution of the Will. He deposed that he can identify the
signatures of late Shri Satyapal Sakhuja on the Will dated 15.01.1989. He identify his signature at
Point Mark A1 and A2 on the Will dated 15.01.1989. He also identify his signatures at Mark B1 and
B2. Shri Sudhir Mehta's signatures appear at mark C1 and C2 . He deposed that he can also identify
the signatures of Shri Sudhir Mehta on the verification of the petition under Section 276 which
appears at Mark E.
36 In the cross-examination he deposed that the marriage of his sister Ms Sangeeta Sakhuja got
married with Mr. Vijay Sakhuja on 13.12.1981. He is 51 years old and he was 18 years old at the
time of marriage of his sister. He was at the age of 25 years at the time of signing the Will. He does
not remember the exact date when his father retired from service and he has not filed any proof with
regard to father of his service. The deceased used to work in the National Archives of India. He
does not know whether the deceased was residing in Govt. accommodation or in private
accommodation.
37 He denied the suggestion that he had known the deceased much prior to the marriage of his sister
with Sh. Vijay Sakhuja, He does not know about the ailment of deceased. He also does not know
about the hobbies of deceased. He admitted that Sh. Vinay Sakhuja and Vijay Sakhuja were the
permissive users in the house of deceased. He denied the suggestion Sh. Vijay Sakhuja and Vinay
Sakhuja and their family members ill treated deceased. He
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 15/74 deposed that he
was called only to sign the already prepared Will as attesting witness. He has no idea whether
deceased had 4/5 fast friends in the neighbourhood. He denied the suggestion that there was no
occasion for calling him to witness the will. He deposed that at the time of signing of the Will by
him, Mr. Vijay Sakhuja, Ms Sangeeta Sakhuja, Ms Meenu Sakhuja wife of Mr. Vinay Sakhuja, Mr.
Satya Pal Sakhuja and second witness Mr. Sudhir Mehta were present. Mr. Vinay Sakhuja was not
present at the time of execution of the Will.
38 In the further cross-examination he deposed that he does not know how deceased died. He had
attended the cremation of the deceased at Nigam Bodh Ghat. He denied the suggestion that
deceased died as unclaimed body and was cremated by Delhi Police at Electric Crematorium. He
does not remember whether the body of deceased was remained in government hospital unclaimed
for three-four days. He denied the suggestion that he is not a attesting witness to the Will. He denied
the suggestion that Sudhir Mehta was never a witness to the Will. He denied the suggestion that on
the alleged day of execution of Will, the signatures of testator was obtained by putting pressure,
coercion and forcefully.
39 In the further cross-examination he deposed that Will Ex. P1 bears the signatures of witness
Gulzar Singh at point Z who accompanied them for registration of the Will. He denied the
suggestion that the signatures of Gulzar Singh were taken when the alleged forged Will was
prepared. He admitted that he was present
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 16/74 at the time of
registration of the Will Ex. P1 but Sh. Sudhir Mehta was not present.
40 In the further cross-examination he deposed that he does not know Mr. M.N. Sharma. He denied
the suggestion that Mr. M.N. Sharma witnesses at Will at the time of registration. He admitted that
his sister is the main beneficiary as per the Will Ex. P1. He further deposed that he does not know
Mr. Dayanand and Mr. Sabharwal being the colleagues of the deceased. He denied the suggestion
that at the time of making of Will, there were only two witnesses Sh. M.N. Sharma and Sh. Gulzar
Singh. He does not know why he did not appear before Sub-Registrar at attesting witness at the time
of registration. He denied the suggestion that signatures of Sh. Sudhir Mehta are different on the
petition and on the Will Ex. P1 41 He further deposed that he does not know if the deceased was
found of typing on portable typewriter. He does not know if the Will was prepared by deceased
himself then the language of the Will would have been different and typed on portable typewriter.
He denied the suggestion that deceased even did not want to see his and his relatives face, He
denied the suggestion that signature of the deceased prior to typing on a blank paper were taken
forcible. He denied the suggestion that he did not visit Sub-Registrar office and will in question is
bogus.
42 Sh. Raj Kumar, Inspector Food and Civil Supplies Department as PW-2 and deposed that he has
not brought the summoned record as it has already been weeded out.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 17/74 43 Sh. Jagdish
Kumar, Record Clerk from Indian Overseas Bank, who proved the statement of account No. 4176
of deceased as Ex. PW-3/A and Ex. PW-3/B as PW-3. Sh. D.C. Rana, Chief Section Supervisor,
MTNL who proved the application forms and order of release of telephone connection as Ex. PW-
4/A and B. Sh. Laxmi Narain Recordkeeper, Chief electoral office as PW-5 and proved the Electoral
list as Ex. PW-5/A. Sh. Ravi Shankar, LDC from Record Room ( Civil) as Ex. PW-6 and proved the
record of case file of case bearing No. E-103/94 titled as " Sangeeta Sakhuja Vs Vinod Khanna" Ex.
PW-6/A ( Colly) which was decided on 17.04.1996.
44 Sh. Vinay Sakhuja, petitioner appeared as PW-7 who tendered his evidence by way of affidavit
Ex. PW-7/A and his additional affidavit as Ex. PW-7/B and rely upon the death certificate as Ex.
PW-7/1, certified copy of reply under order 22 rule 3 CPC as Ex. PW-7/2, certified copy of the
order dated 17.11.1995 as Ex. PW- 7/3.
45 In his affidavit Ex. PW-7/A and B he deposed that Shri Satyapal Sakhuja, deceased testator was
his paternal uncle who left for his heavenly abode on 14.05.1995. The deceased had affixed place of
abode at B-2/52, Safdarjung Enclave, New Delhi. The deceased during his life executed a Will
dated 05.01.1989, Ex. P1 which was duly registered before the office of concerned Sub Registrar,
Delhi. He deposed that deceased did not marry during his life time and his parent had predeceased
him and deceased is survived by the legal representatives, mentioned in Annexure B and
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 18/74 there is no other
legal heir and the properties of the deceased set forth in the schedule Annexure C.
46 He deposed that as per the Will Ex. P1 the deceased had bequeathed the property bearing no. B-
2/52, Safdarjung Enclave, New Delhi to Smt. Sangeeta Sakhuja, wife of Sh. Vijay Sakhuja and Smt.
Meenu Sakhuja, his wife. He further deposed that petitioner alongwith his brother Vijay Sakhuja,
respondent no. 2 had earlier filed a petition for grant of Succession Certificate in respect of the
debts and securities of the deceased. In the said petition, the copy of the Will was also annexed. The
legal representatives of the deceased appeared and filed their written statement, however, the said
petition was dismissed in default in the year 1996.
47 He deposed that Shri Ramesh Sakhuja, one of the legal representatives of the deceased filed a
petition under Section 278 of Indian Succession Act for grant of letter of administration in respect
of the estate of the deceased, however, in the said petition, Shri Ramesh Sakhuja had falsely stated
that deceased had died intestate. In that case petitioner had been made a respondent and he
alongwith his brother were proceeded ex-parte by the Ld. Predecessor of this court. Thereafter,
petitioner moved an application under order 9 Rule 7 read with Section 151 CPC which was
dismissed vide orders dated 19th of July 2005. Against the said order, he filed a civil revision
petition bearing No. 368-69 of 2005 before Hon'ble High Court of Delhi and said petition was also
dismissed vide orders dated 21.09.2005.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 19/74 48 He deposed
that deceased was permanently residing with him and had various official records in his name at the
address where he alongwith deceased were living. He had opened his saving bank account with
Indian Overseas Bank, Safdarjung Enclave, New Delhi in the joint name of the deceased with him
and the account opening form and the statement of account have already been exhibited as Ex. PW-
3/A & B. The deceased had also applied for telephone connection with MTNL and in which release
order was passed which is Ex. PW-4/A and Ex. PW-4/B. The name of deceased also appeared in the
list of Chief Electoral Office as Ex. PW-5/A, 49 He deposed that deceased had filed a petition for
eviction against the respondents bearing no. E-103 of 1994 titled as Satyapal Sakhuja Versus Vinod
Khanna decided on 17.04.1996 and certified copy of the same is Ex. PW-6/A Colly. He deposed that
deceased earlier executed a Will dated 04.10.1969, duly registered before the office of concerned
Sub Registrar, Delhi vide document No. 487 in Additional Book No. 3, Volume No. 22 on pages
166 dated 9.10.1969, in favour of Smt. Sumitra Sakhuja, wife of Shri Suraj Prakash Sakhuja, who
was the elder brother of the deceased and father of petitioner, herein, but unfortunately, during the
life time of Shri Satypal Sakhuja, the said Smt. Sumitra Sakhuja had unfortunately expired and
accordingly, after the demise of said Smt. Sumitra Sakhuja, deceased had revoked the said earlier
Will and executed the present Will.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 20/74 50 He deposed
that deceased was being looked after by him and his family and the land underneath the said
property was initially purchased by Shri Suraj Prakash Sakhuja, the elder brother of deceased and
father of petitioner and it was explicit understanding that the premises in question will be used for
the family of Shri Suraj Prakash Sakhuja and this fact has been so admitted by the deceased in the
proceedings Ex. PW-6/A.
51 Petitioner further filed his additional affidavit Ex. PW- 7/B and deposed that deceased died on
14.05.1995 and after his death a case for succession certificate vide case No. 459 of 1995 was filed
by the petitioner on the basis of the Will which was dismissed in default on 10.09.1996. Shri Satya
Pal Sakhuja, had filed a petition under Section 14 (1) ( a) of the Delhi Rent Control Act, against one
tenant Shri Vinod Khanna son of Shri H.L. Khanna, which petition was entrusted before the court of
ld. ARC, Delhi and after the death of Shri Satypal Sakhuja, an application was moved on behalf of
Smt. Sangeeta Sakhuja under order 22 Rule 3 CPC. The said application was contested by Shri
Vinod Khanna and filed reply to the said application which is Ex. PW-7/X1 and the court declined
the objection vide order Ex. PW-7/X2.
52 He deposed that objector Shri Ramesh Sakhuja, filed letter of administration bearing case No. 98
of 1999 without disclosing the Will but the petitioner were proceeded ex-parte vide orders dated
07.05.2001. The application for setting aside the exparte order was filed on 15.11.2002, which
application was PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 21/74
dismissed on 19.07.2005. Civil revision was filed before Hon'ble Delhi High Court, bearing no.
368-69/2005 which was also dismissed on 21.09.2005. Since the Will in question had not been
challenged in those proceedings by the objector herein and in the metropolitan city, the probate was
not required, hence after the dismissal of the Civil Revision, the present petition for probate was
filed.
53 He deposed that Smt. Sangeeta Sakhuja, had filed a Contempt Case (C) bearing No. 343 of 2005
but court declined the request in the contempt case. The certified copy of the said order is Ex. PW-
7/X3.
54 In the cross-examination he deposed that originally his father had purchased the property from
DDA. Subsequently, it was transferred in the name of late Sh. Satyapal Sakhuja. However, he does
not remember the exact month and year. The property was simple transfer in the name of late Sh.
Satyapal Sakhuja. No sale documents were executed between the two. He does not know as to who
paid the installments. He voluntarily deposed that It was a clear purchase by his father. He denied
the suggestion that his father sold this property to Sh.Satyapal Sakhuja. He denied the suggestion
that all the installments were paid by late Sh. Satyapal Sakhuja after its transfer in his name. The
loan was obtained in the name of Sh. Satyapal Sakhuja and thereafter, installments were paid in the
name of Sh. Satyapal Sakhuja. The construction was completed somewhere in 1968. Sh. Satyapal
Sakhuja retried after the completion of the property. He does not remember the date
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 22/74 and year when he
retried. The ground floor portion was rented out to Sh. Vinod Khanna, might be somewhere in the
year 1986-87. At the time of letting it was extra space so it was let out. He denied the suggest that
Sh. Satyapal Sakhuja had no source of income and that is why it was let out. He voluntarily deposed
that he was getting pension.
55 In further cross-examination he deposed that petition for grant of succession certificate was filed
after the death of Sh. Satyapal Sakhuja in the year 1995. He does not remember orally, if factum of
Will was mentioned in the petition for succession certificate. The legal heirs mentioned in the
petition had filed the petition. The other legal heirs did not admit the contents of petition that is why
the case proceeded. He denied the suggestion that the petition was intentionally got dismissed in
default. The said succession petition was not got restored. He does not remember as to when the
mutation was got effected by us in DDA. He does not remember if the mutation in DDA was
effected on 05.05.1997 on the basis of Will in question. He did not take NOC as per procedure from
other legal heirs for getting the mutation done in DDA. He denied the suggestion that he got the
mutation done fraudulently despite the fact that the other legal heirs did not admit my claim. He did
not file any probate case after dismissal of above said succession petition. He voluntarily deposed
that Probate was not required.
56 In further cross-examination he deposed that he had filed the present petition because Ramesh
Sakhuja had filed a
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 23/74 petition for letter
of administration without a Will. He denied the suggestion that in the above said succession
petition, he did not got served any legal heir. He denied the suggestion that the other legal heirs
came to know from the Reader of the Court about the succession petition, who was relative of
Objectors. He had been residing at B-2/52, Safdarjung Enclave, New Delhi from the year 1999 to
2002.
57 Witness had seen point C-2 in Will Ex. P1, which bears the signatures of Sh. Sudhir Mehta. He
admitted that the signature on petition at Point E is also of Sh. Sudhir Mehta. Mr. Sudhir Mehta is
his neighbour. He is not a childhood friend of him or his brother. Witness Mr. Hemant Talwar who
signed at point B2 on the Will Ex. P1 is the brother-in-law of my brother. He denied the suggestion
that he was present at the time of taking signatures of the deceased testator on the Will Ex. P1. He
denied the suggestion that he along with Sh. Hemant Talwar, his wife, his sister-in-law were present
and they got forcible signatures of deceased testator on the Will Ex. P1. He denied the suggestion
that the Will has been subsequently typed on the singed papers. He thought it appropriate that is
why he got registered the Will Ex. P1 registered after the death of deceased testator. At the time of
registration, attesting witnesses namely, Hemant Talwar and Sudhir Mehta were present. He denied
the suggestion that Hemant Talwar and Sudhir Mehta, who signed the Will Ex. P1 were neither
present nor witnessed before the Sub Registrar Office. No notice issued to other LRs of deceased
testator or the alleged witnesses at the time of registration.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 24/74 58 In further
cross-examination he deposed that his father was local merchant and carrying on a small shop at
Kotla Mubarakpur in a rented shop. He was not permitted to live in property in question by
deceased testator being the family member. The deceased was younger brother of his father. There
were two other brothers of deceased besides his father. He does not know whether Sh. Satyapal
Sakhuja had any sister. He voluntarily deposed that Since he never met them. The names of the
brothers are Amrit Lal Sakhuja and Gian Chand Sakhuja. He does not know how many children of
Amrit Lal Sakhuja. He denied the suggestion that he intentionally did not make family members of
Amrit Lal Sakhuja as party. He voluntarily deposed that never heard of family members of Amrit
Lal Sakhuja. He did not try to inquire about Amrit Lal Sakhuja or any family.
59 He denied the suggestion that my father was financially weak or had no source of income. He
denied the suggestion that my father was permitted to stay in the house due to this reason. He
denied the suggestion that no care was taken of Sh. Satyapal Sakuja. He denied the suggestion that
he was not given any food by us. He was informed by Sh. Satyapal Sakuja that he had executed a
Will. Since Sh. Satyapal Sakuja himself informed him, the question of asking other persons about
the Will did not arise. He denied the suggestion that deceased testator did not execute the Will Ex.
P1 that is why it was not got registered. Deceased testator was suffering from heart ailment during
his lifetime. There was no other ailment of which deceased was suffering. He died due to sudden
cardiac arrest.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 25/74 60 In further
cross-examination he deposed that after taking loan by the deceased, the installment might have
been deducted from his salary. He does not remember date, month and year when deceased had
disclosed him abut the Will Ex. P-1. He does not remember whether deceased was admitted in
hospital from 09.03.1994 to 15.03.1994. He denied the suggestion that during his period of
hospitalization, the signatures were taken on Ex. P-1 from deceased. He did not file any appeal
when the petition for Succession before the Ld. ACJ was dismissed in the year 1992. He denied the
suggestion that he intentionally avoiding the appearance in the letter of administration petition filed
by respondent in the year 1999.
61 He further deposed that he was present at the time of registration of the Will. At that time
attesting witness Sh. Hemant Talwar and Sh. Sudhir Mehta were present. At this stage the witness
after seeing the Will deposed that he cannot tell the signatures of both the witnesses before the
Registrar. He voluntarily deposed that however, he admits/identifies the signatures on Ex. P1 at
point B2 and C2. He denied the suggestion that Sh. Hemant Talwar and Sh. Sudhir Mehta never
appeared before Sub-Registrar. He does not identifies signatures shown to him in the Will at point
Z-1 and Z-2. He voluntarily deposed that they are the persons who assisted them in registration
process. He denied the suggestion that Will Ex. P1 only attested by Sh. M.N. Sharma and one Sh.
Gulzar Singh whose signatures are at Z-1 and Z-2. He denied the suggestion that the will was
witnesses by only M.N. Sharma and Gulzar have signed the
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 26/74 Will before the
Sub-Registrar office or not witness of Sh. Hemant Talwar and Sh. Sudhir Mehta at that time. He
denied the suggestion that both were created later on. He denied the suggestion that necessity for
creating witnesses Sh. Hemant Talwar and Sh. Sudhir Mehta arose as the other two witnesses were
not the reliable witnesses for the purpose of the court.
62 The space at point Z1 and Z-2 was blank at the time presentation of the Will before their
signatures before Sub-registrar. He has no knowledge that apart from Sh. Hemant Talwar and Sh.
Sudhir Mehta, if any body else knows about the Will. Sh. M.N. Sharma and Sh. Gultar Singh were
met at Sub-registrar office. He asked the procedure for registration from them. The Will was typed
by deceased himself. Again said he does not know how he got typed the Will. He does not
rememebr whether deceased was having portable typewriter on which he used to type. He does not
remember whether this typewriter is referred in FIR lodged by deceased against his tenant. He had
knowledge of sub-registrar office at Kashmere gate that is why he went there for registration of
Will. It is possible that at that moment he had no knowledge about Asfali Road office and INA
office.
63 He further deposed that he has no knowledge whether Sh. M.N. Sharma, advocate in
specialization in registration of Will after the death of deceased. He denied the suggestion that he
had drafted the Will Ex. P-1 as per his convenience or also as per convenience of his brother's
family. He denied the suggestion that
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 27/74 deceased lived
life of under fear psychosis. He denied the suggestion that he was under so much of threat from his
famuily that he used to bolt the door while sleeping from inside. He denied the suggestion that in
the neighbourhood he used to tell everybody he convert the property in question into a dharamshala
but not give to anybody. He denied the suggestion that present petition is barred by limitation. He
came to know about the death of deceased on the next day of the death. In response to the question
that why deceased was cremated at electric crematorium he deposed that the body of the deceased
was searched at mortuary at Tis Hazari, Delhi and post mortum was conducted. Doctor also advised
for cremation at electric crematorium immediately. He denied the suggestion that because of that
with the deceased he was not cremated at fire ( traditionally).
64 Respondent examined Sh. Sant Ram, Assistant from the office of LAB Residential, DDA, Vikas
Sadan who brouhgt the record of property bearing B-2/52, Safdarjung Enclave, New Delhi and
proved the affidavit of Ms Sangeeta Sakhuja and Ms Meenu Sakhuja as Ex. RW-2/1 ( Colly).
Respondent further examined RW-3 Sh. Manoj Kumar, LDC, Sub-Registrar-1, Kashmere Gate,
Delhi and proved the letter from Registrar as Ex. RW-3/1.
65 Respondent further examined Sh. M.N. Sharma as RW- 4 and deposed that he know the
procedure of registration of the Will and dealing registration of the documents for the last 40 years
and deposed about the procedure of the registration before Sub-
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 28/74 Registrar.
Thereafter witness identified his signatures and step at point X1 on Ex. P1. He deposed that the
execution of the will not done his presence, therefore, it does not bear his signatures on second
page. He was asked by Sub-Registrar and one broker Gulzar Singh to become a witness to the
execution of the Will but he refused. He deposed that he had seen the will on the day of registration
there were no signatures of any attesting witnesses at point B2 & C2. He deposed that at the time of
registration the person who signed as a attesting witness at the time of execution is required to sign.
He had presented the will for registration and also identified the parties and witness Gulzar Singh.
Registrar maintain a proper file alognwith all documents submitted by the applicants during the
process of registration.
66 In the cross-examination he deposed that the procedure explained by him is available in
registration manual available with the Sub-Registrar. He deposed that he used to work only for
those persons who were affiliated to him and some time he was also asked by the Sub-Registrar to
sign as a witness. He further deposed that in the present case he was asked by the Sub-Registrar as
well as one Sh. Gultar Singh to sign as a witness and identify. He denied the suggestion that when
the will was unregistered and seen by him it bears the signatures at point B & C of both attesting
witnesses Hemant Talwar and Sudhir Mehta. He deposed that record for registering the present will
might be in the office of Sub- Registrar. He further deposed that generally sub-Registrar Kashmere
Gate used to register the documents pertaining to specify
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 29/74 area but he can
register any document of other area being a special case. The special case means where there is
come recommendation to Sub-Registrar. In a month he used to sign one or two cases on the
recommendation of Sub-Registrar. He denied the suggestion that Mr. Hemant Talwar and Sudhir
Mehta both attesting witnesses were present when he had presented the will in question for
registration. He admitted the suggestion that it is correct that no will can be presented for
registration in the absence of both the attesting witnesses.
67 Respondent further examined RW-5 Sh. Vinod Khanna who deposed that he knew the petitioner
Mr. Vinay Sakhuja through their uncle late Sh. Satya Pal Sakhuja. In the year 89-90 deceased Mr.
Satya Pal Sakhuja told him that he has not executed any Will. He used to come to meet him at his
shop Palika Bhawan till one year prior to his death. Some time he used to aske for breakfast and he
used to his death. His servant used to take care of the deceased in his absence. He was tenant under
deceased at premise no. B-2/52, Ground floor, Safdarjung Enclave, Delhi from 1987 to 2006. An
eviction petition filed by deceased against him before the Rent Controller at the instance of
petitioner in the year 1992-1993. In this petition, he had challenged the Will in question but his plea
was dismissed by the court as he was not blood relation of the deceased. The eviction petition was
compromised with petitioner. The deceased did in the year 1995. There was no relation of petitioner
with the deceased. He did not get the respect from his relatives which is required for senior citizen
and old man during his
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 30/74 old life. He knew
Sudhir Mehta as he was his neighbour. Now he is settled in Canada for the last 15 years.
68 In the cross-examination he admitted a petition on the basis of bona fide requirement filed by
deceased against me. Vol. It was filed at the instance of petitioner. The said petition U/s 14 (1)
(e) of the DRC Act was filed by late Mr. Satya Pal Sakhuja for the bona fide requirements of his
Bhanja Vijay Kumar Sakhuja who was then working with Indian Nevy and was supposed to come
back and reside with him. He had filed an affidavit along with application in the said petition for
obtaining leave to defendant and contest the petition before Ld. ARC. The copy of the application is
Ex. Y-1 in Ex. PW-6/A and copy of affidavit is Ex. Y-2 in Ex. PW-6A, the same bears my signatures
at points Y-3, Y-4 and Y-5. He does not know anybody in the name of Suraj Prakash Sakhuja
however, when he inducted as tenant he had heard the name but he was not there. According to him
Mr. Satya Pal Sakhuja was the owner of the property. He admitted that during the pendancy of the
said eviction petition Mr. Satya Pal Sakhuja was died. I does not remember if any application for
bringing on record the legal heir was filed or not.
69 In further cross-examination he admitted that correct that Smt. Sangeeta Sakhuja was made the
party in the said proceedings. He does not remember if any contempt case was filed against me
before Hon'ble High Court vide contempt case (Civil) No. 343/2005. He admitted that he had given
the undertaking to vacate the premises till 30.09.2005. He could not vacate the
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 31/74 premises due to
education of my daughter and my house was under construction. He has no knowledge whether
Hon'ble High Court had sent notice in the contempt petition to Mr. Ramesh Sakhuja or any other
relative. Vol. As far as I remember some body had filed an interim application in the contempt
petition. Mr. Ramesh Sakhuja might have filed the interim application. He admitted that the court
allowed the handing of the key of the premises to Sangeeta Sakhuja not to Ramesh Sakhuja. He
does not remember whether he was ill or not on 09.02.2007. He is patient of asthma for the last
more than 20 years. He does not remember whether he had tendered unconditional apology to the
Hon'ble High Court and he was admonished on the ground of old age and ill health.
70 He does not know Mr. Ramesh Sakhuja. Deceased was suffering from heart disease but used to
walk and travel. He has no knowledge whether deceased used to go to Sunday Book market at
Daryagunj. He does not know the hobbies of deceased. He does not know when where and in what
circumstances deceased had died. He did not attend the last rites of the deceased. Vol. I came to
know after 4-5 days of the death of deceased. I do not remember the date of Uthala ceremony of the
deceased. He denied that deceased was litigating with me in the court as such he never came to my
shop or my residence or never take tea at my shop. He denied the suggest that deceased not having
any talking terms with me. He does not know whether deceased knew typing. He does not know if
he was having any portable typewriter with him. He had visited deceased at his residence only once
or twice. He does not know as to who
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 32/74 were residing
with the deceased. Deceased never filed any criminal case against anybody during his life time. He
does not know as to who used to serve and looked after the deceased. He denied the suggest that
deceased got respect from the petitioner and his family members. He denied the suggest that he is
deposing at the behest of Ramesh Kumar Sakhuja.
71 Respondent further examined Dr. V.C. Mishra as RW-6 who deposed in his examination in chief
that In this matter I have examined two disputed signatures marked as D1 and D2 written as
Satyapal Sakhuja appearing on page 2 disputed Will dated 15.01.1989 and have compared the same
with one admitted signature marked as A, written as Satyapal Sakhuja appearing on a Will dated
04.10.1969. After a scientific and detailed comparison of the above said disputed as well as
admitted signatures, he reached to the conclusion that the two disputed signatures marked as D1 and
D2 are companion tracings and these two signatures have not been written by the writer of admitted
signature marked as A. He has further examined the originals of above said signatures and have
taken photographs of said signatures with the permission of Hon'ble Court. The reason of his
opinion are explained in the report dated 01.11.2016 Ex. RW-6/A bearing his signatures and rubber
stamp on each page at point C & D. He has also attached the photographs Ex. RW-6/B1 to Ex. RW-
6/B13 and photocopies of disputed Will Ex. P1 pages, which is Mark X & Y with the said report.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 33/74 72 He has further
deposed that he is B.Sc. LLB, C.F.Sc (Certificate in Forensic Science from D.U), P.hd. in Forensic
Science and is working as Assistant Professor, Forensic Science at AMITY University. He has also
deposed that in the last 28 years, he has submitted opinions on disputed handwritings, signatures
and thumb impressions in various Hon'ble courts of India and abroad and also submitted reports for
Indian Army, Indian Air Force, Delhi Police, U.P. Police and various government Organizations.
73 In the cross-examination, he deposed that there are various methods of tracing such as Direct
Tracing and Indirect Tracing. The Indirect tracing is divided into by using pencil, any sharp object
or by carbon method mainly. In reply to specific question of ld. Counsel for petitioner, it is deposed
by RW6 that methods of tracing are only a) light and b) carbon. In reply to further specific question,
it is deposed by him that the method used as per report for tracing the signatures D1 and D2 is most
probably by using light and glass under the head - Direct Tracing by single common model genuine
signature.
74 In reply to further specific question, it is deposed by him that the ingredients of the method
a)light - To see the shadow lines of model signature, transmitted light is used and the signature is
traced on the paper on which signature is required by using a glass.
b) carbon - In this method, instead of glass a carbon paper is used. In reply to further specific
question, it is deposed by him that in the present case ,as per my report only light and glass method
has PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 34/74 been used for
tracing the model signature to make D1 and D2 questioned signatures. In reply to further specific
question, it is deposed by him that the measurement method by scale and by making composite
photographs of D1 and D2 under transmitted light on the supplied photocopies of the Will.
75 In reply to further specific question, it is deposed by him that he has taken photograph of original
Will Ex. P1 pertaining to year 1995 and also took photographs of Will of the deceased testator
pertaining to year 1969. In reply to further specific question, it is deposed by him that in the Will
dated 4.10.1969 now Exhibited Ex. P2 word "Sh." is not mentioned on the signature of the deceased
at the place of testator. In reply to further specific question that in his report in para 1, he had
mentioned that he has compared signatures Mark D1 and D2 on will dated 15.01.89 and had
compared the same with one admitted signatures Mark A appearing on the will dated 4.10.69 as Sh.
Satyapal Sakhuja and how he came to this conclusion for the word "Sh." when it is not appearing on
the signature, he stated that the word 'Shri" is typed below the admitted signature and he has
mentioned word "Sh." as he himself write word "Sh." while explaining the name of the signature.
76 He has admitted that in his report written as Shri Satypal Sakhuja has not been written in
accordance with the signatures at point A in Ex. P2. In reply to further specific question, it is
deposed by him that he calculate mathematical length in two
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 35/74 signatures by
calculating the overall mathematical measurement and sometimes the parts of the signatures which
are suspicious for being traced and to see the absence or presence of natural variations. He further
deposed that he calculate the measurement by using simple scale. He admitted that scaling is only
for determining the size of enlargement of signature but deposed further that it is also used to
measure the lengths of two or three suspicious signatures, suspected for tracing as two genuine
signatures cannot be found exactly similar in lengths unless it is traced. He denied to have ever tried
any signatures by tracing for his report purposes. He admitted that tracing can only be done of a
particular portion which is to be traced and the visible shadow lines can only be traced.
77 In reply to further specific question, it is deposed by him that slight length of signature which is
traced, can be increased due to the accidental slip and sometimes also because the forger being
aware of exact duplication can deliberate change the spacing pastern. In present case, he has clearly
observed the exact whole length of signatures Marked D1 and D2 but the spacing between some
alphabet is accidentally or deliberately changed. He further deposed that he cannot say whether it
was accidental or deliberate change. He admitted that when they measure the signature with the
scale, the scale should be at a particular point of signature and the measurement should also be
mentioned. He admitted that the scale is shown on first page of Will dated 15.01.1999 X1, and
photocopy of the photograph at page X2, Will dated 4.10.69 at page X3 and photograph of signature
X4.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 36/74 78 He further
admitted that the scales shown in these papers are either vertical and Diagonal or Vertical both.
However he voluntarily deposed that on each photograph the positioning of the scale is bound to be
different and sometime extra scale is used to press the document in the same level and in X4, he
took photographs of D1 and D2 with scale with single short of camera so that the enlargement of
D1 and D2 can be maintained at the same level by which exact length could be shown by him. He
admitted that in no other document the scale has been shown. In reply to further specific question, it
is deposed by him that in all these four papers X1 to X4 the scale shown by him does not show the
measuring the enlargement of the signatures. In this inquiry, the exactly equal enlargement was
required for D1 and D2 to examine the evidence of tracing so he has taken photograph mark X4 on
the same enlargement. He further deposed that it is not essential to put the scale of measurement
just below the signatures.
79 He further deposed that he has mentioned the measurement only on page X4 and voluntarily
deposed that on the remaining pages measurement was not mentioned because there was no doubt
of tracing. He admitted that on page X4 at both signatures the measurement was found to be 10.2
c.m in whole length. He denied that he has deliberately and intentionally given measurement on X1
to X3 because his report is wrong to this effect. He further deposed that in forgeries like tracing, the
line quality found defective. Line quality means quality of the stokes whether it is fluently written
or slowly written while copying. The tremors,
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 37/74 hesitations and
concealed joinings are the defects of line quality. He has mentioned in his report about line quality
which he has referred above. In para 1 of page 3 where line quality is shown in his report. He
denied that no such defects are seen in the signatures of late Sh. Satyapal Sakhuja.
80 He further deposed that his son Sh. Manas Mishra who is also handwriting expert had assisted
him only in taking transmitted light photographs. He admitted that he has not mentioned this fact in
his report. He deposed that he used Sony Digital Camera for taking the photographs of disputed and
admitted signatures. He denied the suggestion that line quality can be defective when person is old
or sick or in a state of intoxication. Further the line quality can also change depending on the
surface of which is written because there are clear evidence of tracings and there are un-natural pen
poses and concealed joinings as mentioned in para 1 of his report. He deposed that he has not
detailed the points in his report showing the calculation made by him in para 1 of page 3 of his
report because the best way to show these line quality defects to demonstrate the points on the
photographs with arrow marking. He further stated that his son only assisted him in taking the
photographs. He further deposed that since he has used digital camera for taking the photographs,
there is every possibility of photo shop while taking the photographs but any manipulation can be
confirmed again and again with comparison of the original. He has not done any trick photography.
He deposed that he has not filed affidavit of Section 65-B of Indian Evidence Act in the present case
but if required he can file the same.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 38/74 81 In reply to
further specific question, it is deposed by him that the characteristic of nos. 1, 2, 3 & 4 are
qualitative in nature and cannot be shown on the photographs as quantitative observation but
characteristic no. 5,6, 7 & 8 are shown in photographs at Page X4. He cannot show the numbers
5,6,7 & 8 on page X4. He denied the suggestion that whatever he had stated in para 4 and 8 of his
report is not shown in the photographs taken by him. He further deposed that Mr. R. K. Sachdeva,
Advocate present in the court identified the original and disputed signatures to him. He again said
that the said Advocate told him about the admitted and disputed signatures to him. He deposed that
he had taken the photographs from the Court itself. He had asked for extra photocopies of disputed
Will Ex. P1 other than document from Mr. R.K. Sachdeva besides the above said two documents
showing the signatures of deceased Satyapal Sukhuja.
82 In further cross-examination he admitted that one document was of 1969 and other document
was of 1989 having 20 years gap? He admitted that when a person signed after a gap of 20 years
there are little bit variations in the signatures. He further admitted that the fundamental general
character of a signatures remains the same but voluntarily stated that of genuine signatures. He
further deposed that every genuine signatures/writings of the same person always show natural
variations in curves, loops and angles as hand is not a rubber stamp. He further deposed that by
word International Standards, he understand that the scientific community of questioned and
document examination must be
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 39/74 satisfied by the
method of identification of writings and method must be universally accepted. He deposed that he
has applied International standard in the present case but specifically not mentioned in his report but
the method adopted by him is based on International Standards. He has deposed that he has not
specifically mentioned about international standard method in the present case.
83 He further deposed that since he has based his opinion on the basis of exact superimpositions in
letters "s", "at", "al", "Sak" and "Ja" of "Satyapal Sakhuja" of D1 & D2 and these letters are the part
of individual characteristic without natural variation of D1 and D2. He admitted that individual
character and general character constitute a signature. He denied the suggestion that he has not
elaborated the general character and individual character in his report. He further deposed that in his
report Para No. 1 to 9 are about general or Class characteristic and the last para is about individual
characteristic. He further deposed that it is not fully true that these two factors are very important
factors in any examination of handwriting as in case of traced forgeries since letters are bound to
look similar so comparison of individual characteristic have no much significance as
superimpositions is proof of tracing. He deposed that in almost every authoritative book of India
and abroad and there are court judgments also as in which provisions of Forensic science, it is
mentioned that these comparison of individual characteristic have no much significance as
superimpositions is proof of tracing.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 40/74 84 He denied the
suggestion that his report Ex. RW-6/A is silent on these two aspects and therefore cannot be relied
upon. The encircled red on the photographs are already on the originals documents. He further
deposed that he has not given any report on the age and typing on the paper. In reply to further
specific question, he deposed by him that contemporary must be preferred but if they are not found
then older signatures can also be considered. However, he voluntarily deposed that in this matter
since D1 and D2 in themselves are sufficient to prove tracing there is no need of requiring any
comparative signatures. He further deposed that he had asked Mr. R. K. Sachdeva, Advocate to
provide Contemporary signatures of deceased signatures. He further deposed that there was no
interaction between him and the client, the respondent for whom he is appearing regarding the
signatures and documents.
85 He deposed that Mr. R.K. Sachdeva, Advocate engaged him on behalf of his client and he has
not shown any authority whether he has authorities to engage him or not. The respondent's client
paid him professional charges through Mr. R.K. Sachdeva, Advocate. He further stated that he
cannot count but has submitted around 700 to 800 opinion. He does not remember as to how many
these have been decided in favour of his client. He denied that his report Ex. RW-6/A is wrong and
false and that the signatures D1 and D2 are not forged traced signatures of the deceased testator. He
further denied that signatures on Will Ex. P1 of the deceased testator is genuine.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 41/74 86 Respondent
further examined Shri Ajay Anand, Sub- Registrar, Kashmere Gate, Delhi as RW-7 who deposed
that he was posted as Sub-Registrar Kashmere Gate since May 2016. He had brought the volume
register of the Will in question Ex. P1. However the original file pertaining to registration
proceedings of the will in question is not traceable.
87 He further deposed that in the case where deceased testator died after the execution of the Will
the beneficiary or executor named in the will may apply for registration as per Section 40 of Indian
Registration Act. The executor/beneficiary may apply to the Sub-Registrar office for registration of
Will after death. The Registrar concerned thereafter after going through the application satisfy
himself as per Section 41 of the Indian Registration Act. If he is satisfied then will may be
registered. There is requirement of two witnesses and beneficiary/executor. The witnesses shall be
the same who were attesting witness at the time of attestation of the Will in question which was
executed by the deceased testator during his life time. The Sub-Registrar in order to satisfy may
examine the attesting witness and beneficiary appears before him for registration.
88 He deposed that since record is not available therefore he cannot tell whether the attesting
witnesses to the Will summoned by the then Sub-Registrar. He further deposed that it is not
mandatory as per law to summon the attesting witnesses by the Sub-Registrar for registration of the
will and it is also not mandatory
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 42/74 to record the
proceedings for registration of the Will and to arrive at satisfaction of the Sub- Registrar.
89 During the examination of this witness ld. Counsel for respondent no. R2 to 4 Sh. R.K. Sachdeva
submitted that on the point of summoning of witnesses and recording of proceedings, witness may
be declared hostile, Request was allowed and witness was declared hostile and permission granted
for cross on the above said point only.
90 In the cross-examination RW-7 denied the suggestion that as per rules it is mandatory for the
Sub-Registrar to summon the attesting witnesses and record the proceedings of the Will after the
death of deceased testator. He admitted that it is mandatory to prepare a file of registration of the
Will after the death of deceased/testator. There is no provision for limitation period for recording of
proceedings for registration of the Will after the death of deceased testator as per Act. There is no
prescribed period of conducting inquiry for satisfaction as per section 41 of Registration Act. He
denied the suggestion that there is a prescribed limitation period in the rules for conducting the
above said proceedings.
91 In the cross-examination by counsel for the petitioner RW-7 deposed that till today no report has
been lodged regarding the untraceable file of Will in question. He denied the suggestion that Sub-
Registrar as per his discretion can get identify the attesting witnesses as well as the beneficiary and
executor from a PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 43/74
person who is regularly appearing before the Sub-Registrar. There is no provision for introducing
new witnesses at the time of registration of the Will in case of death of deceased testator. He
deposed that he cannot say whether the signatures on the Will Ex. P1 of Sh. Gulzar Singh are
permissible as per rules. The Will Ex. P1 compared by witness, record brought by him. RW-7
voluntarily deposed that number and other particulars are found to be same. Record brought by RW-
7 retained as copy and same was exhibited as Ex. X2.
MY FINDINGS ON ISSUES IS AS FOLLOWS:
92 Ld. Counsel for the petitioner Ms Jasmeet Kaur filed detailed written arguments alongwith
judgments and Sh. R.K. Sachdeva, counsel for respondent no. 4 to 8 also filed written arguments
alongwith judgments. I have considered and perused the same.
93 In the written arguments petitioner highlighted the background of the present factual matrix.
Late Suraj Prakash Sakhuja, father of the petitioner had purchased a plot No. B-2/52, Safdarjung
Enclave, New Delhi, the subject matter of the Will in question through auction from DDA on
05.09.1964. On 08.10.1964 a request letter was sent for transfer of the plot in the name of the late
Sh. Satya Pal Sakhuja, deceased testator for securing loan for construction because deceased
testator was a government servant
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 44/74 and could secure
the loan. On 16.11.1964 DDA accepted request and transferred the property in the name of deceased
testator but no sale transaction was between both the brothers. On 04.10.1969 deceased testator had
executed a will in favour of the mother of the petitioner late Smt. Sumitra Sakhuja and same is also
placed on record. On 02.01.1984, Shri Suraj Prakash Sakhuja, father of the petitioner expired and
on 05.01.1984, Smt. Sumitra Sakhuja expired.
94 On 15.01.1989 deceased testator had executed the Will in favour of Smt. Sangeeta Sakhuja, wife
of Shri Vijay Sakhuja and Smt. Meenu Sakhuja, wife of Shri Vinay Sakhuja, respondent no. 2,
bequeathing the property portion wise. As the property at that time was constructed two and a half
storey. The Will Ex. P1 was un- registered on 15.01.1989.
95 On 27.04.1994 deceased testator had filed an eviction petition against one tenant Vinod Khanna
bearing petition No. E- 92/94 dated 02.05.1994 and 28.04.1994 on the ground of bonafide
requirement. On 14.05.1995 deceased testator expired at Darya Ganj when he had gone for
purchase of certain books from Darya Ganj on Sunday. The petitioner and other family searched in
every hospital and police station but could not find him. The dead body of deceased testator was
found at mortuary, Tis Hazari courts, and on 15.05.1995 after postmortem the dead body was
delivered to petitioner and respondent no. 2. Doctor had advised because of condition of the body
for immediate cremation, therefore cremation was conducted at Electric Crematorium at Rajghat.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 45/74 96 On
02.06.1995 petitioner filed a petition for grant of succession certificate for assets, liability and
movables of the deceased testator on the basis of un-registered Will and notice were duly served
upon objectors but the said petition was dismissed in default on account of non-appearance on
10.09.1996. On 18.6.1995 on legal advise the petitioner's family got registered the Will Ex. P1
which is disputed by the objectors.
97 Another facts stated that on 01.07.1995 an application under order 22 rule 3 (1) CPC was filed
by Smt. Sangeeta Sakhuja in the eviction petition. The ld. Trial court vide order dated 17.11.1995
allowed the said application and observed that no Probate is required in Delhi. On 09.02.2007 a
contempt case was also filed by Smt Sangeeta against the tenant Shri Vinod Khanna. The objector
Ramesh Sakhuja appeared in the said contempt petition and objected for handing over the keys to
Smt. Sangeeta Sakhuja but Hon'ble High Court refused and keys were handed over to Smt.
Sangeeta Sakhuja.
98 On 09.04.1999 a petition for grant of letter of administration was filed by objector Ramesh
Sakhuja against Shri Vijay Sakhuja and Shri Vinay Sakhuja and notice was issued for 21.05.1999
and details mentioned by the petitioner with regard to report of non-service and the publications of
notice on 21.03.2001 and petitioner and respondent no. 2 in the said petition proceeded ex-parte.
They moved applications for setting aside but the same were dismissed. Even they approached to
the Hon'ble High Court
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 46/74 but High Court
also dismissed their petition. In November 2005 present petition was filed by the petitioner for grant
of Probate being the executor of the Will Ex. P1. The respondent no. 4 to 8 contested the petition.
99 The onus and burden of proving the issue no. 1 is on the petitioner, who examined the relevant
witnesses whose testimony has been dismissed hereinabove in detail. The star witness to prove the
Will is Ex. P1 dated 15.01.1989 as legal and valid and executed in sound disposing mind by the
deceased testator is PW-1 Sh. Hemant Talwar, the attesting witness.
100 In the cross-examination it has been deposed by PW-1, Hemant Talwar that his sister Sangeeta
is the wife of petitioner and married on 13.12.1982. His father was working as Deputy Director at
National Archives of India. The deceased was also working with National Archives of India. The
important date of execution of the will as deposed by him that deceased testator had called him
through telephone and expressed the desire and at about 11 A.M before lunch 3-4 days prior to the
execution. He admitted that at the time of execution, petitioner, respondent no. 2 Vijay Sakhuja,
beneficiary his sister Ms Sangeeta Sakhuja and Ms Meenu Sakhuja wife of Mr. Vinay Sakhuja, Mr
Satya Pal Sakhuja and other attesting witness Sudhir Mehta were present. However, it is strange that
he does not know how deceased died. He had attended the cremation of the deceased at Nigam
Bodh Ghat but denied the suggestion that it was taken place at Electric Crematorium. However, a
per record, PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 47/74 it is
proved and admitted by petitioner as PW-7 that cremation had taken place at electric crematorium,
Rajghat.
101 He denied the knowledge about the fact that other attesting witness Sudhir Mehta is childhood
friend. He specifically mentioned about the witness Gulzar Singh on the date of registration of the
will after the death of the deceased testator. Gulzar Singh accompanied them from the house at
Safdarjung Enclave. He admitted that he was present at the time of registration of the will but could
not put up his thumb impression on Will Ex. P1. He admitted that his signatures were taken at the
time of making of the will not at the time of registration at Sub-Registrar office and at the time of
registration, petitioner, respondent no. 2 and beneficiaries and one Gulzar Singh were present. But
he denied the presence of M.N. Sharma. He does not know whether deceased was fond of typing on
portable typewriter. He does not know if the will was prepared by deceased himself or not. He knew
only one brother of deceased who used to live with him. He denied the suggestion that the will was
typed later on and deceased's signatures were taken on blank papers.
102 The analysis of testimony of PW-1 Hemant Talwar established that he is close relative of
petitioner and his sister is beneficiary and all the family members of the petitioner and beneficiaries
were present alongwith other attesting witness. The other attesting witness has not appeared in
witness box. He accompanied to the Sub-Registrar office but did not appear before
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 48/74 Sub-Registrar
during the whole process of registration. In my considered opinion the conduct of testimony of the
attesting witness PW-1 Hemant Talwar is un-natural and improbable. In these circumstances, it is
improbable & unnatural that deceased testator would call him as attesting witness.
103 Petitioner himself is another witness because according to testimony of PW-1 Sh. Talwant
Singh he was also present at the time of execution of the will Ex. P1 by the deceased testator. He
admitted that a succession petition was filed after the death of deceased testator in the year 1995. He
denied the suggestion that it was intentionally got dismissed in default. He admitted that mutation
was also effected by the DDA. He admitted that other attesting witness Sudhir Mehta is his
neighbour but he denied the suggestion that he was not present at the time of signature by deceased
testator on Ex. P1. This testimony is contrary to the testimony of PW-1 Sh. Hemant Talwar. He also
denied that his wife, sister in law were also present at the time of execution of Will. However, he
admitted that after the death of deceased testator the registration was done. His testimony is
contrary to the testimony of PW-1 Sh. Hemant Talwar, in respect of the fact that at the time of
registration Sudhir Mehtar was also present alongwith Hemant Talwar. He again reiterated the fact
that Hemant Talwar and Sudhir Mehta were present at the time of registration of the Will. He denied
the suggestion that Ex. P1 was attested by M.N. Sharma and one Gulzar Singh at the Sub-Registrar
office. The testimony totally contradictory. He explained that M.N. Sharma and Gulzar Singh were
met at the Sub-Registrar office.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 49/74 104 The
respondent no. 4 to 8 examined Sh. M.N. Sharma as RW-4, whose testimony is discussed herein
above in detail. He admitted that execution of the will was not done in his presence, therefore, his
signatures are not on second page. He was asked by the Sub-Registrar and one broker Gulzar Singh
to become a witness but he refused. He had presented the will before the Sub-Registrar and one
Gulzar Singh whose signature appeared on Ex. P1 at Mark 'Z' as a witness. But petitioner has not
produced Gulzar Singh as a witness. The testimony of Mr. M.N. Sharma also established that
Sudhir Mehta was not present and even PW-1 Hemant Talwar did not sign the will at the time of
registration. There is no doubt about his presence also. The back of the first page of the Will Ex. P1
bears the signatures of Vinay Sakhuja, Vijay Sakhuja, Sangeeta and Meena Sakhuja. It does not
bears the signatures either of the attesting witness alongwith stamps. It established that neither of
the attesting witness were present at the Sub-Registrar on the day of registration after the death of
deceased testator.
105 In my considered opinion the petitioner has not successfully fulfill the ingredients of Section 63
(c) of Indian Succession Act. It is not proved that deceased testator had signed the will Ex. P1 in the
presence of both the attesting witness and both the attesting witnesses signed the will in the
presence of deceased testator. The testimony of PW-1 Hemant Talwar as per above discussion and
observation miserably failed to established the essential ingredients. Further more, the registration
process further creates anomaly and suspicious circumstances.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 50/74 106 The
respondents examined RW-7 Sh. Ajay Anand, the present Sub-Registrar. He admitted on record that
at the Sub- Registrar office Kashmere Gate the original record of proceedings of the Will in
question Ex. P1 is not available. It is specifically submitted by PW-7 Sh. Ajay Anand on oath that
for registration of the will after death beneficiary may apply for registration but it is essential that
both the attesting witnesses shall be present who attested the will at the time of execution, during
the life time. It is admitted on record that Sudhir Mehta, attesting witness was not present. The
presence of PW-1 Hemant Talwar, attesting witness is doubtful, therefore, petitioner introduced two
new witnesses Gulzar Singh whose signatures appears on Will at point 'Z' but another witness Sh.
M.N. Sharma, refused to support the fact that he is one of the attesting witness.
107 In my considered opinion the process of registration in the present case is not as per
Registration Act. It is further corroborated with the fact that the proceedings file is not available
with the Registrar office and there is no explanation about the record which is not available and not
produced. The Sub-Registrar at the relevant time had not followed the due process of law because
none of the attesting witness were appeared before him and signed which is also proved as per the
stamps on the first page of the Will at the back side. Therefore, the registration is also vitiated due to
the non-compliance of due process of procedure and provisions of law. There is no explanation why
two new witnesses to be introduced for registration which is not permissible as per law.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 51/74 108 On the basis
of above observation and discussion, issue no. 1 is decided against the petitioner and in favour of
respondent no. 4 to 8.
109 The issue no. 2 has two limbs, the first is suspicious circumstances and second is forged and
fabricated will in question as objected by respondent no. 4 to 8. In order to appreciate the written
arguments on this issue respondent no. 4 to 8 cited several judgments which are mentioned as
under:-
1. Pamela Manmoha Singh Vs State DRJ 418 2000 (1)

2. Krishna Kumar Sharma Vs Rajesh Kumar SharmaCDJ 2009 SC 617

3. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur & Others CDJ 2008 SC 653

4. V.K. Nayar Vs Usha Puri & Others CDJ 2014 DHC 456

5. Pratap Singh Vs State CDJ 2010 DHC 2098

6. Smt. Veena Vs State and Ors.

2014 ( 207) DLT 673

7. The Delhi Registration Rules, 1976 ( Colly)

8. Moti Ram Vs Rittoo CDJ 1968 DHC 027

9. Zora Singh Vs Mango and Ors.

Manu/PH/1089/2015
10. Veena Suri Vs State of NCT of Delhi & Ors Manu/DE/3172/2013
11. Bharpur Singh & Ors Vs Shamsher Singh CDJ 2008 SC 2091
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 52/74
12. H. Vankatachala Iyengar Vs B.N.
Thimmajamma & Others CDJ 1958 SC 142
13. Ved Prakash Vs Om Prakash 2013 (9) AD (Delhi) 461
14. Vikram Chopra Vs State and Ors.
Manu/DE/4986/2009
15. Surinder Kumar Gorver Vs State and Ors Manu/DE/0165/2011
16. Kavita Kanwar Vs State ( N.C.T. Delhi ) Manu/DE/1453/2014
17. Kulwant Kaur Vs State 2014(2) RLR 90 110 I have gone through the written arguments and
judgments cited above by respondent no. 4 to 8. I have also gone through the judgments cited with
written arguments by petitioners and the same are as follows:-
1. Smt. Indu Bala Bose & Ors. Vs Manindra Chandra Bose & Anr U.J (SC) 1982

2. S.P.S. Rathore Vs C.B.I. & Anr. Crl. Appeal No. 2126 of 2010

3. Sanjeev Desai Vs State NCT of Delhi & Ors FAO 408/2015 decided on 8.09.2016

4. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur & ors 2008 Legal Eagle ( SC) 523

5. Yumnam Ongbi Tampha Ibema Devi Vs Yumnam Joykumar Singh and Others (2009)
4 Supreme Court Cases 780 111 The fundamental principal laid down by the by the
Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR
443 decided on 13 th November 1958 in which the Apex court laid down the following
prepositions on the
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 53/74
nature and standard of evidence required to prove a Will:-

1. Stated generally, a will has to be proved like any other document, the test to be applied being the
usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other
documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as
evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been
called for the purpose of proving its execution, if there be an attesting witness alive, and subject to
the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of
the will is never available for deposing as to the circumstances in which the will came to be
executed. This aspect introduces an element of solemnity in the decision of the question whether the
document propounded is proved to be the last will and testament of the testator. Normally, the onus
which lies on the propounder can be taken to be discharged on proof of the essential facts which go
into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a
different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of the will under which he receives a
substantial benefit and such other circumstances raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the
signature of PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 54/74 the
testator or that the testator was in a sound and disposing state of mind and memory at the time when
the will was made, or that those like the wife and children of the testator who would normally
receive their due share in his estate were disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious circumstances makes the initial onus
heavier and therefore, in cases where the circumstances attendant upon the execution of the will
excite the suspicion of the court, the propounder must remove all legitimate suspicions before the
document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances
that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in
determining the question as to whether an instrument produced before the court is the last will of
the testator, the court is called upon to decide a solemn question and by reason of suspicious
circumstances the court has to be satisfied fully that the will has been validly executed by the
testator.
6 If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will,
such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances
surrounded the execution of the will may raise a doubt as to whether the testator was acting of his
own free will. And then it is a part of the initial onus of the propounder to remove all reasonable
doubts in the matter. "
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 55/74 In most of the
subsequent judgments they followed the principles and referred to this judgment only. Therefore, on
the basis of principles laid down in the above said judgment H. Venkatachala Iyengar (Supra) let us
examine the present facts and circumstances.
Suspicious Circumstances 112 Ld. Counsel Sh. R.K. Sachdeva on behalf of respondent no. 4 to 8
drawn the attention to the Will Ex. P1 recitals. I have gone through the recitals. Ld. Counsel for
respondents further drawn to the attention on the recital of earlier will of deceased testator the
original of the same filed on record and is Ex. P2. I have gone through the Will Ex. P2 dated
04.10.1969. The Will Ex. P1 recites that deceased in possession and owned a two and a half storey
house bearing No. B.2/52, Safdarjung Enclave, New Delhi. It is self acquired property and
constructed from own savings from salary, gratuity and pension funds. Whereas in the Will dated
04.10.1969 Ex. P2 it is stated that deceased testator possess a house BII/52, Safdar Jang
Development Scheme, New Delhi and constructed mortgaged to the President of India against a
advance of Rs. 19,000/- which were repaid in installments of Rs. 167/- per month since January.
Both recital are contrary to each other. According to petitioner his father late Sh. Suraj Prakash
Sakhuja was allotted the plot which was transferred to deceased testator on his request. In the will in
question Ex. P1 the manner of construction is contrary to the manner of construction in the Will Ex.
P2 dated PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 56/74
04.10.1969. The true facts are cited in Ex. P2. It established that deceased testator cannot recite
above funds for construction that it was from his savings and salary when he had already
acknowledged the taking of loan and repayment. It raises grave suspicious circumstances which are
not dispell by the petitioner.
113 Another vital fact is that in Will Ex. P2 it was categorically written by deceased testator that
will was drafted by him. It is established on record that he was found of typing and having portable
typewriter then in natural course he must have written in Will Ex. P1 as well about drafting by him
but it is missing.
114 Here very vital question again arise that who, how and when the will Ex. P1 was drafted and
typed. The entire evidence led by petitioner is silent on important aspects. Although petitioner and
respondent no. 2 both beneficiaries and both the attesting witness were present when deceased had
executed the Will. But when, who and how typed the Will is missing. In the present circumstances
of the case it is very important for the petitioner to highlight the drafting of the will by the deceased
testator which is completely missing. It also further raises grave suspicion about the legal and
genuineness of the Will Ex. P1.
115 Further more, I would like to highlight the process of registration adopted after the death of the
deceased testator, of the will Ex. P1. PW-1, the attesting witness Sh. Hemant Talwar was present but
he was not participated in the registration process. He
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 57/74 failed to appear
before Sub-Registrar. He failed put his thumb impression and signatures before the Sub-Registrar.
On the contrary two new persons were introduced i.e Sh. Gulzar Singh and Sh. M.N. Sharma. But
Sh. M.N. Sharma did not corroborate the petitioner to this aspect as well. It also raises grave
suspicious circumstance about the legal and genuineness of the Will Ex. P1. As already been
observed that registration process suffers legal anomalies and contrary to the well settled procedure
and provisions of law.
116 It is pertinent to mention here that another circumstance with regard to the Will Ex. P1
significant is that the witness Sh. Hemant Talwar has signed at point B2 on will Ex. P1 with blank
Ink and his address has been mentioned with the blue ink. It is visible from the bare necked eye in a
different handwriting. It may be the signature of PW-1 Sh. Hemant Talwar at point B2 by himself
but his address has been written in Ex. P1 by some other person. The signatures of other attesting
witness Sh. Sudhir Mehta is also in the blank ink. It raise doubt that who is the person who had
written with the blue ink, address of Sh. Hemant Talwar. The Will Ex. P1 on all places having
signatures of deceased testator and attesting witnesses in the blank ink. It also raises grave
suspicious about the legal and genuineness of the Will Ex. P1. The petitioner and attesting witness
failed to explain the use of blue ink & handwriting on Will Ex. P1.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 58/74 117 It is pertinent
to mention here that as per evidence of petitioner's witnesses it is established on record that at the
time of execution of the Will Ex. P1 by the deceased testator, petitioner and respondent no. 2, both
beneficiaries Ms Sangeeta Sakhuja and Ms Meenu Sakhuja and two attesting witnesses were
present. The deceased had bequeathed the Safdarjung house in favour of wives of both, the
petitioner and respondent no. 2, therefore, it cannot be ruled out in natural circumstances that
petitioner and respondent no. 2 used their influence while executing of the present will. In the
circumstances, where it is not brought on record and established that who and when and in what
circumstances the drafting took place, therefore, in natural circumstances it can be drawn that
petitioner's family influenced the deceased testator for the execution of the will Ex. P1 in which the
wives of petitioner and respondent no. 2 are the beneficiaries in such a manner that the property
stand partitioned as well.
118 The other vital point is that petitioner is the executant in the Will Ex. P1. It is noteworthy that in
Will Ex. P2 dated 04.10.1969 no executant was appointed by the deceased testator. Another vital
point to be noted in the Will Ex. P2 natural attesting witnesses were made who were the colleagues
of the deceased testator, therefore, it raises grave suspicious circumstances which are not dispell by
the petitioner.
119 It is pertinent to mention here that at the fag end of the present case an important development
took on 25.01.2017 when
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 59/74 case was listed
for final arguments, respondent no. 2 Sh. Vijay Sakhuja engaged a counsel Ms Madhumita Kothari,
who filed an application for referring the matter to Supreme Court Mediation Centre. It also raises
grave suspicious about the conduct of the petitioner and respondent no. 2 because the contesting
respondent are respondent no. 4 to 8 not respondent no. 2 because his wife Ms Meenu Sakhuja is
one of the beneficiary in the Will Ex. P1. Therefore, an attempt was made to further prolong the
proceedings of the present case and intentionally a new counsel has been engaged by respondent no.
2 in collusion with petitioner. It also raises grave suspicious circumstances which are against the
petitioner.
120 Another important vital aspect which has brought on record about the mutation proceedings
taken place before the DDA on the basis of Will Ex. P1. The record produced in the court
established that No objection of all the legal heirs were not taken by the petitioner for getting
mutation as per will Ex. P1. The concealment and suppression of the vital aspects of not disclosing
all the legal heirs before DDA as well also raises grave suspicious circumstances thereby mutation
was carried out by the DDA as per documents submitted by the petitioner. In my considered opinion
the genuineness and legality of the will is surrounded by grave suspicious circumstances and
petitioner failed to dispell them.
121 Now coming to the aspect of forged and fabrication of the Will. The respondents eventually
relied on the testimony of RW-
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 60/74 6 Sh. V.C.
Mishra, handwriting expert. I have gone through his report and also perused the testimony which is
discussed in detail herein above. PW6 Dr. V.C. Mishra examined to disputed signatures D1 and D2
on will Ex. P1 appearing on page 2 of the Will and compared the same with one admitted signature
Mark A which was on Will dated 4.10.1969. According to his opinion the disputed signatures are
traced one and he have given the detailed reasons alongwith photographs which are exhibits
alongwith report.
122 In the cross-examination his estimation that tracing was done by using light and glass by direct
tracing. His report is based on signatures which were pertaining to the deceased testator in the year
1969 and he has compared with the signatures in the year 1989. However, he has missed the
important aspect the tool of tracing of alleged signatures because the signatures are with the pen. I
myself gone through the signature of deceased testator in the will Ex. P2 pertaining to 1969 and the
Will in Ex. P1 at point A1 and A2. The word 'satyapal in both the will has significant feature that
'tya are linked and jointly written together and word 'pal' is having slight gap and after some
distance Sakhuja is written in which last two words 'ja' are joined. I find same characteristic in the
signature of deceased on disputed signature and in the admitted signatures.
123 In my considered opinion the opinion of handwriting expert, RW-6 Dr. V.C. Mishra is not
establishing beyond reasonable doubt the method of tracing as a forgery of the signatures of the
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 61/74 deceased testator.
On this aspect it is pertinent to mention here that the testimony of RW-1 Sh. Ramesh Sakhuja
cannot be considered because a general allegations were made by him and also in witness box on
the same line he deposed about the forgery and fabrication of the Will Ex. P1. His testimony also
established that in the year 1992 after three years of execution of the Will during the ailment of the
deceased he met ad his testimony speaks about most of the hearsay facts but one specific question
he answered that the signatures of the deceased testator on the will Ex. P1 is correct but signed after
death. He has been taking contrary stands during the cross-examination with regard to alleged
forgery and fabrication of the signature of the deceased, therefore, his testimony cannot be
believable on this aspect.
124 On the basis of above discussion and observation the respondent no. 4 to 8 established grave
suspicious circumstances which are surrounded with legal and genuineness of the will of the
deceased testator Ex. P1, however it is not established beyond reasonable doubt that Will Ex. P1 is
having the forged and fabricated signatures of the deceased testator. Accordingly issue no. 2 is
decided in favour of respondent no. 4 to 8 and against the petitioner.
Issue no. 3 125 The onus and burden of this issue is on the respondents. Ld. Counsel for respondent
no. 4 to 8 submitted that from the bare eyes it can be established that the signatures of the attesting
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 62/74 witness Sudhir
Mehta on petition at point 'E' is entirely different from the signatures appearing on the will Ex. P1 at
point 'C2' and not belong to one person. On the other hand ld. Counsel for the petitioner submits
that no document proved on record where admitted signatures of Sh. Sudhir Mehta produced and
proved by the respondents. There is no oral evidence as well. Ld. Counsel for respondent no. 4 to 8
submits that the summons were sent at the available address of the Sudhir Mehta but as per report
he has shifted to abroad, therefore, could not be produced.
126 I have considered respective submissions of both the counsels. The court has ample power to
compare the signatures as per provisions Indian Evidence Act. The petition bears the signatures of
Sudhir Mehta, attesting witness at point E and on Will Ex. P1 at point C2. The signature at point C2
apparently appears to be entirely different from the signatures at point E on the petition visible from
bare eye. The first word 'S' does not have any round although at petition point E there is a big round
while forming the 'S'. There is a proper distance between word 'dhir' whereas in the petition there is
no distinction of 'dhir' words and all are jumbled. Similarly, the word, 'Mehta' the first word 'M' in
the petition at point A is entirely different from the first word on the Will Ex. P1 at point C2. The
word 'ehta' is clearly readable and written at a proper distance having proper link, however, in the
petition one cannot read the word 'ehta' and all another significant after is that there is 'dash' under
the last words in the petition whereas in the Will at point C2 no 'dash' put by the Sudhir Mehta
while signing the Will.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 63/74 127 In my
considered opinion after comparison both the signatures on Will Ex. P1 at C2 and at point E on
petition both the signatures are of different person not of one person. Both signatures are not
authored by same person. These facts raises grave suspicious about the signatures of the Sudhir
Mehta on the petition at the verification para. The petitioner also not produced Sudhir Mehta and
also the present address at any point of time during the entire trial of 15 years. It also raises great
suspicious circumstances, therefore, in my considered opinion the issue no. 3 is decided against the
petitioner and in favour of respondent no. 4 to 8.
128 The onus to prove this issue is on respondent no. 4 to 8. Ld. Counsel for Sh. R.K. Sachdeva,
submitted that petitioner has not impleaded all the L.Rs of the deceased testator Satya Pal Sakhuja
in the present petition. Therefore, petition is liable to be dismissed for concealing the material facts
regarding all relatives/L.Rs of deceased testator. He relied on judgment of Yuv Rajnarain Gorwaney
Vs State 2005 (125) DLT 401 and emphasized para 4 of the judgment and the relevant portion of the
same is reproduced herein under:
" However, considering all these aspects of the matter, I am of the view that when the
Rules prescribe and the law down a particular procedure, the applicant ought to have
been made a party in the present proceedings. Moreover, the non-citing of a necessary
party can be a ground for revocation of a probate granted under Section 263
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 64/74 of the
Indian Succession Act, 1925. If such an eventuality exists, then delay in approaching the
court ought not to come in the way of these probate proceedings because after all what
the court to do is to determine as to whether the Will in question was, in fact, the Will
left by Smt Avinash Pandit. In this view of the matter, the application deserves to be
allowed. The said Shri Rajiv Sharma is impleaded as respondent/objector No. 4. The
application stands allowed accordingly."

On the other hand ld. Counsel for the petitioner submitted that all the L.Rs of deceased Satya Pal
Sakhuja impleaded by the petitioner. The L.Rs who are not in knowledge also not impleaded by
respondent no. 4 to 8 in the other petition as well. So it means the L.Rs who are impleded by
petitioner are the only one, therefore, there is no concealment on the part of petitioner for
impleading the L.Rs.
129 I have considered the respective submissions of both the counsels and perused the judgments. I
would like to refer to the cross-examination of PW-7 Sh. Vinay Sakhuj, the petitioner. The ld.
Counsel had put specific question with regard to L.Rs/brothers of the deceased testator. PW-7
testified that the brother of deceased apart from his father are Sh. Amrit Lal Sakhuja and Sh. Gian
Chand Sakhuja. The respondent no. 4 to 8 are the sons and daughters of Sh. Gian Chand Sakhuja.
However, there is mention of Amrit Lal Sakhuja or his sons and daughters who are also on the same
footing being the L.Rs of deceased testator. He also admitted that he did not try to inquire about the
family members of Sh. Amrit Lal
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 65/74 Sakhuja. So it
established that deceased testator Satyapal Sakhuja having another brother Sh. Amrit Lal Sakhuja
but his L.Rs are not made party. It is in contrary to the well settled principle and procedure of law to
include all the L.Rs of deceased because the Probate proceedings are in Ram. Applying the
judgment of Yuv Rajnarain Gorwaney Vs State (Supra), the petitioner has concealed Sh. Amrit Lal
Sakhuja and his L.Rs, therefore, there are deficiency in the petition which may dis-entitled the
petitioner from Probate. Therefore, issue no. 4 is decided in favour of respondent no. 4 to 8 and
against petitioner.
Issue no. 5 130 The burden to prove this issue is on respondent no. 4 to
8. It is mixed question of fact and law. During the course of final arguments photocopies of certified
copy of succession petition dated 02.06.1995 and orders filed by petitioner filed on record. Both
parties have no objection in considering the documents. Ld. Counsel Sh. R.K. Sachdeva, for
respondent no. 4 to 8 in the written arguments submitted that petitioner Vinay Sakhuja in the year
1995 have filed one succession petition for movable assets and alleged that will was also mentioned
in the petition. The respondents contested the petition and filed detailed written statement on
19.08.1995 and taken the objections with regard to concealing the facts regarding the shop in B-2,
Market and house at Safdarjung Enclave immovable properties of the deceased. The replication was
filed by petitioner but there was no assertion on these important facts.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 66/74 131 It is further
submitted that although petitioner mentioned about the will but in the list of documents filed before
the succession court it was not mentioned. Even the pagination of the file shows that "Will' must
have been filed later on may be at record room. It is further submitted that Succession petition was
dismissed in default. It was deliberate and intentional attempt on behalf of petitioner because of the
objections by the respondent no. 4 to 8. It is submitted that cause of action arose on the day when
respondents have disputed the succession petition, therefore, petition for probate must have been
filed within three years as per article 137 of Limitation Act. The present petition filed in November
2005, therefore, hopelessly barred by limitation.
132 It is further submitted that in the year 1999 respondent no. 4 Ramesh Sakhuja had filed petition
for issuance of letter of administration. In that petition the petitioner and his other brothers and
sisters avoided the service and they were proceeded ex-parte. They moved an application for setting
aside the ex-parte order in the year 2001 and same was dismissed by the then District Judge.
Petitioner preferred appeal but same was also dismissed by the Hon'ble High Court on 21.09.2005.
133 It is submitted that in attentive the cause of action again arose in 1999 so petitioner was bound
to file the present petition within three years but failed to file, therefore, present petition is beyond
the limitation period and liable to be dismissed.
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 67/74 134 Ld. Counsel
for respondent no. 4 to 8 relied on the judgment of Krishna Kumar Sharma Vs Rajesh Kumar
Sharma CDJ 2009 SC 617 ( Supreme Court judgment), Kunvarjeet Singh Khandpur Vs Kirandeep
Kaur & Ors CDJ 2008 SC 653 ( Supreme Court), C.V.K. Nayar Versus Usha Puri & Ors, CDJ 2014
DHC 456 ( Delhi High Court Judgment), D Pratap Singh Vs State ( DB) CDJ 2010 DHC 2098-2010
( 173) 132 DLT ( Delhi High Court), E. Smt. Veena Vs State and Ors. 2014 ( 207) DLT 673 ( Delhi
High Court Judgment).
On the other hand ld. Counsel for the petitioner submitted that the succession petition was filed
alongwith will but unfortunately, it was dismissed in default. On that day there was no cause of
action for the petitioner to file the Probate petition with regard to the will in question Ex. P1. The
petitioner and his brothers and sisters never served in the petition filed by respondent no. 4 Ramesh
Sakhuja in the year 1999. The petitioner taken appropriate legal steps for setting aside the ex-parte
order when they gained knowledge and lastly from the Hon'ble High Court their appeal was
dismissed in January, 2004 and present petition filed in November, 2005. Ld. Counsel for the
petition also drawn the attention to the documents of eviction petition filed on record which was
filed by deceased testator during his life time against the tenant Vinod Khanna.
135 It is submitted that an application filed by wife of petitioner on 01.07.1995 for impleading as
L.R in the eviction petition and same was allowed by the ld. Trial court vide order
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 68/74 dated 17.11.1995
Ex. PW-7/X2 and it is specifically observed that no Probate is required in Delhi. It is submitted that
present Probate petition is within limitation and cause of action arose to the petitioner after the
dismissal of appeal by the Hon'ble High Court and, therefore, within three years Probate petition
has been filed.
136 I have considered the respective submissions of both the counsels and perused the judgments.
137 Before giving my findings on the above said issues, Let us peruse the law laid down by Appex
Court. The question for consideration, is whether the petition for grant of Probate/ Letter of
Administration is governed by the provision of Article 137 of the Limitation Act, come up in the
case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, Supreme
Court of India, while answering whether Article of Limitation Act applies to the application for
probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article
181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified
application. Even in the Limitation Act of 1908 where there is no period provided for a specific
application, a residuary clause is included providing limitation for other applications. Article 181 of
the Limitation Act, 1908 being the residuary clause contemplates the application for which no
period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil
Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which
can be reasonably ascertained from the comparison of
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 69/74 two provisions,
which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when the
which no period of right to apply accrues

limitation is provided elsewhere in this Division."


Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P.
Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in
Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908
Limitation Act shown that applications contemplated under Article 137 are not
applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there
was no division between applications in specified cases and other applications as in the
1963 Limitation Act. The word 'any other application' under Article 137 cannot be said
on the principle of ejusdem generis to be applications under the Civil Procedure Code
other than those mentioned in Part I of the third division. Any other application under
Article 137 would be petition or any application under any Act. But it has to be an
application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act
speak of expiry of prescribed period when court is closed and extension of prescribed
period if the applicant or the appellant satisfies the court that he had sufficient cause for
not preferring the appeal or making the application during such period.

PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 70/74


22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition
or application filed under any Act to a Civil Court. With respect we differ from the view taken by
the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of
the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil
Procedure. The petition in the present case was to the District Judge as a court. The petition was one
contemplated by the Telegraph Act for judicial decision. The petition is an application falling within
the scope of Article 137 of the 1963 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under
Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under
Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article
137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not
restricted to an application under the Code of Civil Procedure, but an application under special
statue being filed before the Civil Court.
15 Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS.
RAJESH KUMAR SHARMA (2009) SCC, held that Article 137 of Limitation Act is applicable in
case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET
SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr.
Dalpatrai's contention. I summarise my
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 71/74 conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for
probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the
death of the deceased, is unwarranted;
(c)Such an application is for the court's permission to perform a legal duty created by a will or for
recognition as a testamentary trustee and is a continuous right which can be exercised any time after
the death of the deceased, as along as as the right to do so survive and the object of the trust exists
or any part of the trust, if created remains to be executed;
(d)the right to apply would accrue when it becomes necessary to apply which may not necessarily
be within 3 years from the date of the deceased's death.;
(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay,
greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
138 Now applying the above law in the present facts and circumstances of the case. It is admitted
by the petitioner that deceased testator Satya Pal Sakhuja died on 14.05.1995 and just after two
weeks a succession petition filed on 02.06.1995 for
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 72/74 movable
properties. As per the photocopies of certified copies of the complete file available on record Sh.
Ramesh Sakhuja who is the son of deceased testator brother Sh. Gian Sakhuja alongwith his other
brothers and sisters are respondent no. 3 to 7. All respondent no. 3 to 7 filed detailed written
statement and there is specific objections with regard to exclusion of B-2 market shop and
Safdarjung Enclave property B-2/52. The written statement was filed on 19.08.1995. In the
replication by the petitioner these objections were not answered and evasive reply were written and
replication was filed on 06.09.1995. The succession petition is silent on the aspect of immovable
properties. There is no averment in regard to Will Ex. P1. No annexure also attached to describe the
Will. The respondent no. 4 to 8 at the very first opportunity objected to the inheritance by the
petitioner or his family and others of the estate of the deceased testator in the year 1995.
139 In my considered opinion the dispute has arose in the year 1995 for the first time. However, for
the argument sake let us presume that since the petition was dismissed in default, therefore, there
may be no actual cause of action had arisen. 140 Now coming to the another important aspect, i.e in
the year 1999 a separate petition for issuance of letter of administration filed by respondent no. 4
Sh. Ramesh Sakhuja. This fact is also admitted on record. The respondents as per the record served
lastly in the year 2001 by way of publication. The record further established that they avoided the
service for about two years. Their plea of setting aside the ex-parte culminated in the
PC No. 95/10/05 Vinay Sakhuja Vs State & Ors 73/74 High Court order
and thereafter no further challenge by the petitioner. It also established that the second cause of
action arose in the year 1999 and for the stretch of imagination lastly in 2001. Now applying the
ratio of the Supreme Court of Supreme Court judgment of Krishan Kumar Sharma Vs Rajesh
Kumar ( SUPRA) the limitation period start in the present facts and circumstance of the case firstly
in the year 1995 if it was not matured then in the year 1999 and lastly on 2001 but the present
petition filed in November 2005 which is beyond three years, therefore, barred by limitation.
On the basis of above discussion and observation, the issue no. 5 is decided in favour to respondent
no. 4 to 8 and against the petitioner.
141 In view of detailed findings on issue no. 1 and findings on issue no. 2 to 5 this issue is also
decided against the petitioner and in favour of respondent no. 4 to 8.
Relief 142 In view of my finding on issue no. 1 to 6, petitioner failed to prove and establish that the
Will Ex. P1 dated 15.01.1989 of deceased testator late Sh. Satyapal Sakhuja is legal and genuine
Will. Hence, petitioner is not entitled to Probate, therefore, petition is dismissed. No order as to
cost. File be consigned to record room.
(Announced in the open (SANJAY
KUMAR)
Court on 4th March, 2017 ) ADJ-02
( West)
Delhi

126. The circumstances/facts which have been established are that:-


(i) Vinod Kumar Gupta (deceased) had left his home i.e. House No.33, Masjid Mor, GK-II, New
Delhi in his Corola car bearing number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to
family members that he was going to Jasola and would return within 1 ½ - 2 hours, but he did not
come back by 11:00 pm.
(ii) At around 02:00 am in the night, PW-3 got a telephonic call from Police Station Greater Noida
that aforesaid car was found abandoned near Kailash Hospital, Greater Noida.
(iii) PW-3 called some of his relatives and approached police station Chitranjan Park (C.R. Park)
at about 03:30 am and lodged a missing report Ex. PW-1/D-1.
(iv) PW-2 Head Constable Sube Singh received an information at 06:25 am on 18.06.2011 from the
operator (JAVA 66) regarding missing of deceased and recovery of his vehicle from Noida and
recorded said information in roznamacha at serial number 37 vide Ex. PW-2/A.
(v) The said Corola car bearing number DL 4CNE 5237 was found at Police Station Kasna,
Greater Noida, Uttar Pradesh which was earliar found abandoned in front of Kailash Hospital.
(vi) The deceased along with accused Ashutosh Tiwari visited/stayed at Transit Lodge, ISBT, Sector
17, Chandigarh on 27.08.2009.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 62 of 77
(vii) Accused Deepak Kumar was arrested on 20.06.2011 and Rs. 6,500/- and a railway ticket were
recovered from the right pocket of his pant.
(viii) The mobile phone G'NINE with one SIM of Vodafone company having number 9628469398
was recovered from the pant of accused Deepak Kumar.
(ix) The call detail records of mobile phone number 9628469398 which was recovered from the
possession of accused Deepak Kumar, from the period 01.05.2011 to 30.06.2011 is Ex. PW-13/C
(x) 14 cigarette butts were recovered on 20.06.2011 from the House No. 156, Sector 92, Noida,
Uttar Pradesh.
(xi) The dead body of deceased were recovered on 20.06.2011 at the instance of accused Deepak
Kumar from the House No. 156, Sector 92, Noida, Uttar Pradesh.
(xii) Currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17) and one gold ring having nine
pieces of diamond were recovered from the pant lying on the hanger/khuti of the room of house of
accused Ashutosh Tiwari at village Shahpur near Kunda, district Pratapgarh, Uttar Pradesh on
20.06.2011.
(xiii) Two mobile phones both make Nokia C E 0434 were recovered from the drain, Brahamputra
Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the instance of accused
Deepak Kumar and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 63 of 77 Ashutosh
Tiwari.
(xiv) Accused Dalip Tripathi was arrested on 23.06.2011 from village Palla, Faridabad and a
golden ring was recovered from his possession.
(xv) Accused Rakesh Kumar was arrested at the instance of accused Ashutosh Tiwari on 20.06.2011
from his shop (Shardha Jewellers) Kunda, Pratapgarh, Uttar Pradesh.
(xvi) Two rings of golden colour which were recovered from accused Ashutosh Tiwari and accused
Dalip Tripathi were identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP
proceeding (Ex. PW-3/J) on 06.07.2011.
(xvii) Those rings Ex. MO-2 and Ex. MO-3 were the same, which father of complainant (PW-3) was
wearing when he left their house on the night of incident on 17.06.2011.
(xviii) There were nothing to suggest that accused Ashutosh Tiwari, Dalip Tripathi and Deepak
Kumar were incapable for performing the sexual intercourse under normal circumstances.
(xix) Accused Ashutosh Tiwari, Deepak Kumar and Dalip Tripathi are resident of same village i.e.,
Shahpur, Police Station Kunda, Pratapgarh, Uttar Pradesh.
The offence punishable under Section 302 IPC SC No.2240/2016 State v. Deepak Kumar & Ors.
Page No. 64 of 77
127. The case is based on circumstantial evidence. The principle of circumstantial evidence has
been reiterated by Hon'ble Supreme Court in plethora of cases. In Sharad Birdichand Sarda v. State
of Maharashtra, (1984) 4 SCC 116, Hon'ble Supreme Court laid down the following five tests to be
satisfied in a case based on circumstantial evidence:- "1. The circumstances from which the
conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any other hypothesis except that the accused is
guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved, and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human
probability the act must have been done by the accused."
128. In Aftab Ahmad Ansari v. State of Uttranchal (2010) 2 SCC 583, Hon'ble Supreme Court held
in the following words:
"In cases where evidence is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should, in the first instance, be fully established.
Each fact must be proved individually and only thereafter the court should consider the
total cumulative effect of all the proved facts, each one of which SC No.2240/2016 State
v. Deepak Kumar & Ors. Page No. 65 of 77 reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is conclusive in establishing the guilt of
the accused, the conviction would be justified even though it may be that one or more of
these facts, by itself/themselves, is/are not decisive. The circumstances proved should be
such as to exclude every hypothesis except the one sought to be proved. But this does
not mean that before the prosecution case succeeds in a case of circumstantial evidence
alone, it must exclude each and every hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be."

129. In Bodhraj @ Bodha & Ors v. State of Jammu & Kashmir, (2002) 8 SCC 45, Hon'ble Supreme
Court has held at para no. 9 to 13:
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is
not necessary that the crime must be seen to have been committed and must, in all
circumstances be proved by direct ocular evidence by examining before the court those
persons who had seen its commission. The offence can be proved by circumstantial
evidence also. The principal fact or facium probandum may be proved indirectly by
means of certain inferences drawn from factum probans, that is, the evidentiary facts.
To put it differently, circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely associated with the fact
in issue that taken SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 66 of 77
together they form a chain of circumstances from which the existence of the principal
fact can be legally inferred or presumed.

10. It has been consistently laid down by the Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the innocence
of the accused or the guilt of any other person. (See Hukum Singh v. State of Rajasthan,
(1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v.
State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, 1985 Supp SCC 79,
Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v.
State of M.P. 1989 Supp (1) SCC 560.) The circumstances from which an inference as to
the guilt of the accused is drawn have to be proved beyond reasonable doubt and have
to be shown to be closely connected with the principal fact sought to be inferred from
those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid
down that where the case depends upon the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such as to negative the innocence of the
accused and bring home the offences beyond any reasonable doubt.

11. We may also make a reference to a decision of this SC No.2240/2016 State v. Deepak Kumar &
Ors. Page No. 67 of 77 Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it
has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial
evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn
should be fully proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete and there should be no gap left in the chain of evidence. Further,
the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 it was laid down that when a
case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp.
710-11, para 10) "10 (1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused:
(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused and
none else: and SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 68 of 77 (4) the
circumstantial evidence in order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be inconsistent with his innocence ".
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care
must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be accepted. It was also pointed
out that the circumstances relied upon must be found to have been fully established and the
cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
130. The above said principle of circumstantial evidence has been reiterated by Hon'ble Supreme
Court in State of Goa v. Sanjay Thakkran & Ors., (2007) 3 SCC 755; Nizam & Ors v. State of
Rajasthan, (2016) 1 SCC
550.
131. The circumstances/facts which have been established are that Vinod Kumar Gupta (deceased)
had left his home i.e. House No.33, Masjid Mor, GK- II, New Delhi in his Corola car bearing
number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to family members that he was
going to Jasola and would return within 1 ½ - 2 hours, but he did not come back by 11:00 pm; that
at around 02:00 am in the night, PW-3 got a telephonic call from Police Station SC No.2240/2016
State v. Deepak Kumar & Ors. Page No. 69 of 77 Greater Noida that aforesaid car was found
abandoned near Kailash Hospital, Greater Noida; that PW-3 called some of his relatives and
approached police station Chitranjan Park at about 03:30 am and lodged a missing report Ex. PW-
1/D-1; that PW-2 Head Constable Sube Singh received an information at 06:25 am on 18.06.2011
from the operator (JAVA 66) regarding missing of deceased and recovery of his vehicle from Noida
and recorded said information in roznamacha at serial number 37 vide Ex. PW-2/A; that the said
Corola car bearing number DL 4CNE 5237 was found at Police Station Kasna, Greater Noida
which was earliar found abandoned in front of Kailash Hospital; that PW-6 Constable Tanish
Kumar took the photographs of said car vide Ex.PW-6/A-1 to Ex.PW-6/A-9; that the vehicle was
seized vide seizure memo Ex. PW-4/A and thereafter the vehicle was brought to the police station C.
R. Park and deposited in the Malkhana; that PW-3 gave a complaint to the police vide Ex. PW-3/A;
that rukka Ex. PW-33/A was prepared by PW-33 and FIR was registered vide Ex. PW-1/A; that the
deceased along with accused Ashutosh Tiwari visited/stayed at Transit Lodge, ISBT, Sector 17,
Chandigarh on 27.08.2009; that Accused Deepak Kumar was arrested on 20.06.2011 and Rs.
6,500/- and a railway ticket were recovered from the right pocket of his pant; that the mobile phone
G'NINE with one SIM of Vodafone company having number 9628469398 was recovered from the
pant of accused Deepak Kumar and the call detail records of said mobile phone number from the
period 01.05.2011 to 30.06.2011 is Ex. PW-13/C; that the dead body of deceased were recovered on
20.06.2011 at the instance of accused Deepak Kumar from the House No. 156, Sector 92, Noida,
Uttar Pradesh; that two mobile phones both make Nokia C E 0434 were recovered from the drain,
Brahamputra Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the SC
No.2240/2016 State v. Deepak Kumar & Ors. Page No. 70 of 77 instance of accused Deepak
Kumar and Ashutosh Tiwari; that accused Dalip Tripathi was arrested on 23.06.2011 from village
Palla, Faridabad and a golden ring was recovered from his possession; that two rings of golden
colour with diamond were identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP
proceeding (Ex. PW-3/J) on 06.07.2011 and said rings were the same, which father of complainant
was wearing when he left their house on the night of incident on 17.06.2011; that there were
nothing to suggest that accused Ashutosh Tiwari, Dalip Tripathi and Deepak Kumar were incapable
for performing the sexual intercourse under normal circumstances; that accused Ashutosh Tiwari,
Deepak Kumar and Dalip Tripathi are resident of same village i.e., Shahpur, Police Station Kunda,
Pratapgarh, Uttar Pradesh.
132. From these proved circumstances/facts, I am of the considered view that circumstances from
which the conclusion of the guilt can be drawn have been fully proved and circumstances are of
conclusive in nature. All the circumstances are complete and there are no gap left in the chain of
evidence. The proved circumstances are consistent only with the hypothesis of the guilt of the three
accused persons namely, Deepak Kumar, Ashutosh Tiwari @ Sonu and Dalip Tripathi and totally
inconsistent with their innocence. Hence, prosecution has been succeeded to prove that accused
Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi had committed the murder of deceased Vinod
Kumar Gupta during the period between 17.06.2011 to 20.06.2011 at B- 156, Sector-92, Noida,
Uttar Pradesh. Hence, prosecution has proved the charge of offence punishable under Section 302
read with Section 34 IPC against the accused Deepak Kumar, Ashutosh Tiwari @ Sonu and Dalip
Tripathi.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 71 of 77 The offence punishable under
Section 394 read with Section 34 IPC
133. As I held above that the circumstances inter alia which have been proved are that Vinod
Kumar Gupta (deceased) had left his home i.e. House No. 33, Masjid Mor, GK-II, New Delhi in his
Corola car bearing number DL 4CNE 5237 at 08:30/09:00 pm on 17.06.2011 stating to family
members that he was going to Jasola and would return within 1 ½ - 2 hours, but he did not come
back by 11:00 pm; that at around 02:00 am in the night, PW-3 got a telephonic call from Police
Station Greater Noida that aforesaid car was found abandoned near Kailash Hospital, Greater
Noida; that PW-3 called some of his relatives and approached police station Chitranjan Park at
about 03:30 am and lodged a missing report Ex. PW-1/D-1; that the said Corola car bearing
number DL 4CNE 5237 was found at Police Station Kasna, Greater Noida which was earlier found
abandoned in front of Kailash Hospital; that the deceased along with accused Ashutosh Tiwari
visited/stayed at Transit Lodge, ISBT, Sector 17, Chandigarh on 27.08.2009; that Accused Deepak
Kumar was arrested on 20.06.2011 and Rs. 6,500/- and a railway ticket were recovered from the
right pocket of his pant; that the mobile phone G'NINE with one SIM of Vodafone company having
number 9628469398 was recovered from the pant of accused Deepak Kumar and the call detail
records of said mobile phone number from the period 01.05.2011 to 30.06.2011 is Ex. PW-13/C;
that the dead body of deceased were recovered on 20.06.2011 at the instance of accused Deepak
Kumar from the House No. 156, Sector 92, Noida, Uttar Pradesh; that two mobile phones both
make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial Market, Sector-29,
Noida, Uttar Pradesh on 23.06.2011 at the instance of accused Deepak Kumar and Ashutosh
Tiwari; that accused Dalip Tripathi was arrested on 23.06.2011 from SC No.2240/2016 State v.
Deepak Kumar & Ors. Page No. 72 of 77 village Palla, Faridabad and a golden ring was
recovered from his possession; that two rings of golden colour with diamond were identified by
complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP proceeding (Ex. PW-3/J) on 06.07.2011
and said rings were the same, which father of complainant (PW-3) was wearing when he left their
house on the night of incident on 17.06.2011. Accused Ashutosh Tiwari, Deepak Kumar and Dalip
Tripathi are resident of same village i.e., Shahpur, Police Station Kunda, Pratapgarh, Uttar
Pradesh.
134. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such
person, and any other person jointly concerned in committing or attempting to commit such
robbery are said to have committed the offence punishable under section 394 IPC.
135. In the present case, it has been proved as held in previous para that accused Deepak Kumar,
Ashutosh Tiwari and Dalip Tripathi had committed the murder of deceased Vinod Kumar Gupta
during the period between 17.06.2011 to 20.06.2011 at B-156, Sector-92, Noida, Uttar Pradesh. Rs.
6,500/- was recovered from the right pocket of pant of accused Deepak Kumar on 20.06.2011. Two
mobile phones both make Nokia C E 0434 of the deceased were recovered from the drain,
Brahamputra Commercial Market, Sector-29, Noida, Uttar Pradesh on 23.06.2011 at the instance
of accused Deepak Kumar and Ashutosh Tiwari. A golden ring was recovered from the possession
of accused Dalip Tripathi on 23.06.2011. Currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-
9/A-17) and one gold ring having nine pieces of diamond were recovered from the pant lying on the
hanger/khuti of the room of house of accused Ashutosh Tiwari at village Shahpur near Kunda,
district Pratapgarh, Uttar Pradesh on 20.06.2011.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 73 of 77
136. Currency notes of Rs. 9500/-(Ex.MO-9/A-1 to Ex. MO-9/A-17) are proved to have been
recovered from the possession of accused Ashutosh Tiwari and Rs. 6,500/- are proved to have been
recovered from possession of accused Deepak Kumar. But the prosecution has been failed to
connect the said rupees to the crime of the present case.
137. A golden ring was recovered from the possession of accused Dalip Tripathi on 23.06.2011 and
one gold ring having nine pieces of diamond were recovered from the pant lying on the
hanger/khuti of the room of house of accused Ashutosh Tiwari at his instance on 20.06.2011. Said
two rings had been identified by complainant (PW-3) vide Ex. MO-2 and Ex. MO-3 in TIP
proceeding (Ex. PW-3/J) on 06.07.2011 and said rings were the same, which father of complainant
(PW-3) was wearing when he left their house on the night of incident on 17.06.2011. Two mobile
phones both make Nokia C E 0434 were recovered from the drain, Brahamputra Commercial
Market, Sector- 29, Noida, Uttar Pradesh on 23.06.2011 at the instance of accused Deepak Kumar
and Ashutosh Tiwari.
138. Hence, it has been proved that accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi in
further of their common intention, in committing robbery of said two rings and two mobile phones,
voluntarily caused hurt/death of Vinay Kumar Gupta during the period between 17.06.2011 to
20.06.2011 at B-156, Sector-92, Noida, Uttar Pradesh and committed the offence punishable under
Section 394 read with Section 34 IPC.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 74 of 77 The offence punishable under
Section 365 read with Section 34 IPC
139. This charge of offence of abduction under section 365 read with Section 34 was framed
against accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi. Section 362 IPC provides that
whoever by force compels, or by any deceitful means induces, any person to go from any place, is
said to abduct that person. Whoever kidnaps or abducts any person in order that such person may
be murdered or may be so disposed of as to be put in danger of being murdered, he commits the
offence punishable under Section 364 IPC. In the present case, it has not been proved that deceased
was compelled by force or induced to go from any place and therefore, offence under Section 364
IPC has not been proved.
The offence punishable under section 411 IPC against the accused Deepak Kumar, Ashutosh Tiwari
and Dalip Tripathi
140. The charge for the offence punishable under Section 411 IPC was framed against the accused
Deepak Kumar as he had got recovered Rs. 6500/- (including rupees received by him as his share
by selling the stolen property golden chain). Further, the charge for the offence punishable under
Section 411 IPC was framed against the accused Ashutosh Tiwari as he had got recovered Rs.
9500/- (including rupees received by him as his share by selling the stolen property golden chain)
and one gold ring. Further, the charge for the offence punishable under Section 411 IPC was
framed against the accused Dalip Tripathi as he had got recovered one gold ring.
141. I have already held that the prosecution has been failed to connect SC No.2240/2016 State v.
Deepak Kumar & Ors. Page No. 75 of 77 the said rupees (Rs. 9500/- and Rs. 6500/-) to the crime
of the present case. So far as recovery of said two rings and two mobile phones are concerned, I
have already held guilty accused Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi for the
committing the offence under Section 394 read with Section 34 IPC. Section 114 of the Indian
Evidence Act, 1872 says that the court may presume the existence of any fact which it thinks likely
to have happened being had to the common course of natural events, human conduct and public
and private business, in their relation to the facts of the particular case. Further, Illustration (a)
thereof says that the court may presume that a man who is in possession of stolen goods after the
theft is either the thief or has received the goods knowing them to be stolen, unless he can not
account for his possession. As I have already held guilty accused Deepak Kumar, Ashutosh Tiwari
and Dalip Tripathi for the committing the offence punishable under Section 394 read with Section
34 IPC, therefore, they can not be held guilty for the offence punishable under Section 411 IPC.
The offence punishable under section 411 and 201 IPC against accused Rakesh Kumar
142. There is only disclosure statements against the accused Rakesh Kumar for the offences
punishable under Section 411 and 201 IPC. The gold chain has not been recovered. It has not been
proved beyond reasonable doubt that accused Rakesh Kumar purchased a robbed article i.e. gold
chain of deceased from the accused Ashutosh Tiwari and caused disappear the evidence by melting
the said chain. Hence, Offences punishable under Section 411 and 201 IPC against the accused
Rakesh Kumar have not been proved.
SC No.2240/2016 State v. Deepak Kumar & Ors. Page No. 76 of 77
143. In view of above discussion, I am of the view that prosecution has proved the offence
punishable under Section 302 read with Section 34 IPC beyond reasonable doubt against the
accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi. Further, prosecution
has proved the offence punishable under Section 394 read with Section 34 IPC beyond reasonable
doubt against the accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi.
Hence, accused persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi are convicted
for the offences punishable under Section 302 and 394 read with Section 34 IPC. But accused
persons namely, Deepak Kumar, Ashutosh Tiwari and Dalip Tripathi are acquitted for the offence
punishable under Section 365 read with Section 34 IPC. Accused Rakesh Kumar is acquitted for the
offence punishable under Section 201 and 411 IPC. Accused persons namely, Deepak Kumar,
Ashutosh Tiwari and Dalip Tripathi are acquitted for the offence punishable under Section 411 IPC.