Appeal
Appeal against the final judgment of High Court convicting the appellant under section 302 IPC
3. The instant appeal is directed against the final judgment and order dated 29th September, 2022, passed by the Division Bench of the High Court of Delhi at New Delhi in Criminal Appeal No. 281 of 2021, whereby the appeal preferred by the appellant came to be dismissed, affirming the judgment dated 12th February, 2021, rendered by the learned Additional Sessions Judge, South East, Saket Courts, New Delhi. By the said judgment, while the accused-appellant was acquitted of the charges under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and 3(4) of the Maharashtra Control of Organised Crime Act, 1999, and Sections 396, 307, 397, 412 read with Section 34 of the Indian Penal Code, 1860, he was convicted for the offence punishable under Section 302 IPC, whereas the remaining co-accused were acquitted. The High Court further affirmed the order on sentence dated 20th February, 2021, whereby the accused-appellant was sentenced to undergo imprisonment for life with a fine of Rs.5,000/-, and in default whereof, to further undergo simple imprisonment for a period of one month.
Prosecution case
4. On the intervening night of 2nd/3rd November, 2008, at about 1:50 a.m., an information was received at Police Station, New Friends Colony through wireless operator, regarding an incident of house breaking by night at House No. 81, Sukhdev Vihar, near Escort Hospital, where the intruders were allegedly assaulting the occupants of the premises. At about 2:00 a.m., further information was received at the said Police Station, which was reduced into writing vide DD No. 29A, as per which, Head Constable Bhagirath (PW-7) informed that SI Sanjeev Solanki (PW-17) may be sent to the spot.
5. Pursuant thereto, SI Sanjeev Solanki (PW-17), accompanied by Constable Ashok Kumar (PW-9), proceeded to the place of occurrence and apprised the Additional S.H.O., who arrived there shortly thereafter. Upon entering the premises, they found the sliding door of the drawing room broken, the side grill bent, the house ransacked, and the household articles scattered. A large pool of blood was noticed in the lobby, where the dead body of an elderly male (deceased-Madan Mohan Gulati) was lying, alongside certain articles. Bloodstains and articles in disarray were also observed in the adjoining bedroom.
6. On hearing faint cries emanating from the adjoining bedroom, the police officials rushed inside and found an elderly lady, later identified as Smt. Indra Prabha Gulati (PW-18), lying in an injured condition. She was immediately shifted to AIIMS Hospital by the PCR. Thereafter, SI Sanjeev Solanki (PW-17), accompanied by Inspector S.K. Sharma (PW-15), proceeded to the Trauma Centre, AIIMS, where Smt. Indra Prabha Gulati (PW-18) was under treatment. Medico-Legal Certificate (MLC)6 of the injured, Smt. Indra Prabha Gulati (PW-18) was prepared on 3rd November, 2008, by Dr. Sharwan. The MLC recorded that the injured was fit for statement and noted multiple grievous stab injuries, including blood clots around the nether region, scalpdeep wounds, and a lacerated wound near the right eyebrow. The nature of the weapon used to cause the injuries was opined to be sharp.
7. Upon being declared fit, the statement (Fard bayan) 7 of Smt. Indra Prabha Gulati (PW-18) was recorded by SI Sanjeev Solanki (PW-17) and based on the said statement, Inspector S.K. Sharma (PW-15) prepared a rukka and handed it over to SI Sanjeev Solanki (PW-17), pursuant to which an FIR8 came to be registered at Police Station, New Friends Colony, for the offences punishable under Sections 394/397/302/307/34 of IPC.
8. On 5th November, 2008, body of the deceased Madan Mohan Gulati was identified by his son-Vivek Gulati, and by his nephew-Servesh Gulati (son of the deceased’s younger brother). The post-mortem examination of the deceased was thereafter carried out, and the post-mortem report was issued wherein the cause of death was opined to be shock and haemorrhage on account of multiple antemortem injuries. The opinion on the weapon of offence (knife/chheni) was also obtained from the doctor.
9. The accused-appellant was apprehended on 21st November, 2008, based on the description allegedly provided by the injured eye-witness, Smt. Indra Prabha Gulati (PW-18). It is alleged that the accusedappellant gave a disclosure statement, and in furtherance thereof, he led the police party to an open area near bushes situated at Pul Prahladpur, from where a blood-stained Eagle brand pant was recovered from a pit. The pant was duly seized and sealed. On the following day, while the appellant was on police remand, his disclosure led to the arrest of the co-accused persons.
10. On 25th November, 2008, pursuant to a supplementary disclosure statement, the appellant purportedly led the police party to the bushes near the railway track behind Priyanka Camp, from where one chheni was recovered. The same was also seized and sealed. Thereafter, the accused-appellant also facilitated the recovery of the robbed articles, namely, one idol of Lord Ganesha and a Panasonic CD player, from his Jhuggi.
11. Shri Vivek Kumar Gulati, son of the deceased and Smt. Indra Prabha Gulati (PW-18) identified the case property in the Test Identification Parade conducted on 6th December, 2008. The proceedings of the TIP were conducted by Shri Devendra Kumar Jangala (PW-16), learned Additional District Judge, West, Tis Hazari Courts.
12. On 24th December, 2008, TIP was organized in respect of the accused Raj Kumar @ Bheema, Jawahar, Ranbir @ Sintu, and Naeem @ Mota; however, they refused to participate in the same. Upon comparison, the fingerprints of the accused Jawahar and Ranbir @ Sintu were found to tally with the chance prints lifted from the spot. The site inspection plan was prepared, and the material exhibits were forwarded to the Forensic Science Laboratory13 on 22nd January, 2009. Upon completion of the investigation, chargesheet in connection with the said FIR came to be filed on 2nd February, 2002, against the accused, namely, Raj Kumar @ Bheema, Ramesh Kumar @ Shankar, Naeem Khan @ Mota, Jawahar, and Ranbir @ Sintu, in the Court of the learned ACMM, for offences punishable under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and 3(4) of the MCOCA, and Sections 396, 307, 397, 412 read with Section 34 of IPC. One of the accused, namely, Kastoori, could not be traced out despite best efforts, and proceedings under Sections 82 and 83 of the Code of Criminal procedure, 197314 were initiated against him and his name was placed in Column No. 2 of the chargesheet. Since the offences were triable exclusively by the Court of Sessions, the learned ACMM, after compliance with the provisions of Section 207 CrPC, committed the case to the Court of Sessions for trial, where charges were framed against the accused. They abjured their guilt and claimed trial.
13. During the course of trial, the prosecution examined 27 witnesses and exhibited 25 documents in consolidated form to prove the guilt of the accused. The accused Ramesh @ Shankar examined one witness in defence. Upon closure of prosecution evidence, statements of the accused persons were recorded under Section 313 CrPC affording them an opportunity to explain the incriminating material appearing against them. The accused-appellant, in answer to Question No. 82, categorically stated, “I am innocent and have been falsely implicated in the present case. PW-17 Inspector Sanjeev Solanki was known to me prior to the present case, and he has falsely implicated me in this case.”
Discussion and Analysis
31. We have given our thoughtful consideration to the submissions advanced at bar and have carefully gone through the impugned judgments, the material available on record, as well as the written submissions filed on behalf of both sides.
32. Since the appellant seeks reversal of concurrent findings of fact recorded by the trial Court as well as the High Court, this Court is required to tread with circumspection. It has been consistently held by this Court in a catena of decisions that unless the findings are shown to be perverse or rendered in disregard of material evidence, this Court would be slow in interfering with concurrent conclusions of the Courts below. Reference in this regard may be made to the decision of this Court in the case of Mekala Sivaiah v. State of Andhra Pradesh, the relevant para of which is quoted hereinbelow:
“15. It is well settled by judicial pronouncements that Article 136 is worded in wide terms and powers conferred under the said Article are not hedged by any technical hurdles. This overriding and exceptional power is, however, to be exercised sparingly and only in furtherance of cause of justice. Thus, when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or misreading of evidence or by ignoring material evidence then this Court is not only empowered but is well expected to interfere to promote the cause of justice.” (Emphasis is supplied)
33. Keeping the aforesaid principle in mind, this Court would proceed to consider the appeal at hand to examine whether there is some manifest error or illegality in the impugned judgment, and if any grave and serious miscarriage of justice has been occasioned on account of misreading or ignoring of material evidence in the present case.
34. Evidently, on a perusal of the judgments under challenge and upon considering the submissions advanced by learned Standing Counsel for the State, it emerges that primarily three circumstances have been relied upon by the prosecution to bring home its case against the appellant:
i. The identification of the appellant in Court by the prosecution witness Smt. Indra Prabha Gulati (PW-18) during her sworn testimony.
ii. The refusal of the appellant to participate in the TIP, leading to an adverse inference being drawn against him.
iii. Recovery of weapon of offence stained with human blood.
36. Based upon the testimony, it is clear that the witness Smt. Indra Prabha Gulati (PW-18) had shifted to the United States of America immediately after the incident, and her statement came to be recorded through video conferencing on 8th May, 2017, i.e., after a gap of eight and a half years from the occurrence. She stated that out of the five assailants who had entered the house, one or two went towards the kitchen, while four entered through the drawing room door. They were armed with a chheni, screwdriver, and knife, and demanded the keys from her husband. Upon his request for some time, one of the assailants, who was carrying an iron rod and a chheni, inflicted a blow on the head of her husband, who collapsed. She too was given a blow, though she could not recollect as to who had inflicted the injury. She further stated that she remained admitted in Moolchand Hospital for about one month and ten days. She categorically asserted that she never saw the assailants thereafter and that she neither met the police nor did she go to the Patiala House Courts after being discharged.
Public Prosecutor requested the witness to identify the accused on the video display from the dock
37. The Public Prosecutor requested the witness to identify the accused on the video display and from amongst the accused present in the dock, who were shown to the witness, she identified the accused-appellant as the assailant who was armed with a chheni and a rod and who had inflicted blows upon her husband.
38. The witness further stated that she could remember the face of only one accused, as she had become unconscious, and thus she was unable to identify any of the other assailants who were presented for identification. The learned Public Prosecutor sought permission of the Court to crossexamine the witness on the ground that she was not narrating complete facts disclosed during investigation. However, in response to the suggestions of the Public Prosecutor, she gave discrepant answers.
39. To a material suggestion, the witness replied: “I did not go to Patiala House Court on 26.12.2008” and volunteered that her son had gone to the Court as she was unwell. She denied the suggestion that she had identified four boys, namely Raj Kumar, Ranbir, Jawahar, and Naeem @ Mota, in the Patiala House Court and affirmed to the police that they were the assailants who inflicted blows on her husband and looted cash and jewellery from the house.
How to contradict a witness with respect to his previous statement through video conferencing explained?
41. Learned defense counsel sought to confront and contradict the witness with reference to her previous statement under Section 161 CrPC on the aspect that there was no description of the clothes or physique of the assailants in such statement. The trial Court observed that the effect of such omission/improvement would be considered at the stage of final arguments, since the witness was being examined through video conferencing. The witness further stated that she was discharged from Moolchand Hospital on 24th/25th December, 2008, and that she did not go to the police after 25th December, 2008. She was confronted with a pertinent suggestion that the police had shown her the photographs of Raj Kumar and that her counsel had also seen the photograph and tutored her for identifying the appellant, which she denied.
Procedural irregularity spotted: 42. We must take note of and resolve a very important feature being a procedural irregularity which has arisen in this case. As would be evident from the discussion made hereinabove, the evidence of the star prosecution witness Indra Prabha Gulati (PW-18) was recorded through video conferencing because she had in the intervening period shifted to Canada.
Trial court denied the prayer of confronting the witness due to witness not before the court: 43. During the course of cross-examination, the defence tried to confront the witness (PW-18) with her previous statement so as to elicit a contradiction/highlight an omission. However, the trial Court observed that this objection would be considered at the time of final adjudication because the witness (PW-18) was not present before the Court and the document being the previous statement in writing could not be shown to her (supra).
44. However, on going through the trial Court’s judgment, we do not find any discussion made regarding this pertinent objection by the defence.
Sections 147 and 148 IEA discussed and explained: 45. The Evidence Act/ Bharatiya Sakshya Adhiniyam, 2023 provide the procedure for evidence as to the matters in writing and cross-examination as to previous statements in writing. Section 147 of the BSA (144 of the Indian Evidence Act and Section 148 of the BSA (Section 145 of the Indian Evidence Act) are reproduced hereinbelow for the sake of convenience: –
“147. Evidence as to matters in writing.—Any witness may be asked, while under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Explanation.— A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant fact.
148. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
46. A plain reading of the above provisions would make it clear that wherever questions are required to be put as to the matters in writing/previous statements in writing, the attention of the witness must be drawn to the document/statement itself. Thus, a question would arise as to how this procedure would be followed in cases where the evidence of the witness is being recorded over video conferencing.
47. In this age of advancement of technology, instances are galore where, the evidence of witnesses are being recorded over video conferencing. In such circumstances, none of the parties should be put to a dis-advantage merely because the witness is not in attendance before the Court, and the document/previous statement in writing with which such witness is sought to be confronted, cannot be shown/put to him.
Previous statements of witnesses shall be sent to the concerned witness before the trial: 48. Therefore, we hereby clarify and direct that in every case where, it is proposed to record the statement of a witness over video conferencing and any previous written statement of such witness or a matter in writing is available and the party concerned is desirous of confronting the witness with such previous statement/matter in writing, the trial Court shall ensure that a copy of the statement/document is transmitted to the witness through electronic transmission mode and the procedure provided under Section 147 and Section 148 of the Bharatiya Sakshya Adhiniyam (corresponding Section 144 and Section 145 of the Evidence Act) is followed in the letter and spirit, so as to safeguard the fairness and integrity of the trial.
49. This direction is being issued with a view to avoid procedural irregularities and to prevent disadvantage to any party before the Court, and also to uphold the principles of fair trial, effective cross-examination, and proper appreciation of evidence.
Identification in Court after delay – Unsafe and Improbable
Identification of accused was disclosed in section 161 Cr.P.C: 54. In her cross-examination, the witness Smt. Indra Prabha Gulati (PW-18) stated that the accused/appellant Raj Kumar @ Bheema was wearing a black coloured shirt, which is an improvement introduced for the first time after nearly eight and a half years. This appears to be one of the probable reasons for her identification of the accused-appellant. No identifying feature of the assailants was disclosed in her previous statement recorded under Section 161 CrPC, wherein no physical description of the accused persons or clothes worn by them at the time of the incident was mentioned. Such an embellishment casts a serious doubt on the reliability of her dock identification and is suggestive of a clear attempt to fill critical lacunae in the prosecution case.
55. In assessing the credibility of a witness, the testimony must inspire confidence in the judicial mind, and omissions, improvements, or contradictions touching the core of the prosecution version inevitably undermine such assurance. This Court has consistently held that minor discrepancies are not fatal, but material improvements that go to the root of the matter essentially erode the credibility of the witness.
Glaring Infirmities in the Test Identification Proceedings
58. In this context, it would be essential to advert to the prosecution case regarding the effort made by the Investigating Officer to get the appellant subjected to the TIP.
59. It is the case of the prosecution that the accused was arrested on 21st November, 2008. On perusal of the arrest memo, it is apparent that there is no mention in the document that the face of the accused was kept baparda (muffled) after his arrest. A doubt on the prosecution case on identification thus arises from this very stage.
62. It is trite that where the witnesses have had an opportunity to see the accused prior to the holding of the TIP, the evidentiary worth of such proceedings stands considerably diminished. It is the duty of the prosecution to establish beyond doubt that right from the time of arrest, the accused was kept baparda to rule out the possibility of his face being seen before the identification proceedings are conducted. If the witnesses have had any opportunity to see the accused before the TIP – whether physically or through photographs – the credibility and sanctity of the identification proceedings would stand seriously compromised.
Recoveries and Non-identification of Articles
67. In addition to the above, the prosecution placed reliance on the alleged recoveries of looted articles at the instance of the accused. However, it is pertinent to note that Smt. Indra Prabha Gulati (PW-18) was not made to identify the said articles during her testimony. Furthermore, Vivek Gulati, son of Smt. Indra Prabha Gulati (PW-18), who is stated to have identified the articles in the TIP, was not examined during the trial. Consequently, the alleged recoveries lose their evidentiary worth and cannot be relied upon, as there is no credible proof that they are the looted articles.
69. Once the identification of the accused by Smt. Indra Prabha Gulati (PW-18) is discarded, and the recovery of articles cannot be connected either with the crime or with the accused, no substantive or credible evidence remains on record to link the accused with the offence.
Conclusion
70. In view of the discussion made hereinabove, the impugned judgments do not stand to scrutiny. The appeal is, thus, allowed.
71. The judgment dated 29th September, 2022, passed by the High Court, as well as the judgment of conviction dated 12th February, 2021, and the order of sentence dated 20th February, 2021, passed by the trial Court, are hereby set aside.
Party
Raj Kumar @ Bheema vs. State of NCT of Delhi - Criminal Appeal No(s). 4895 OF 2025 (Arising out of SLP (Crl.) No (s). 697 of 2024) - 2025 INSC 1322 - NOVEMBER 17, 2025 - Hon'ble Mr. Justice VIKRAM NATH and Hon'ble Mr. Justice SANDEEP MEHTA.
Author’s note
When specific portions of this judgment was brought and explained to me by Thiru. R. Ravindran, advocate, Chennai, regarding the contradiction of witnesses through video conferencing, I wonder why the Hon’ble Supreme Court has sought to change the law?
Right! Now, the statement recorded under section 161 Cr.P.C [section 180 BNSS., 2023] cannot be used for any purpose other than contradicting the witness as per section 145 IEA [section 148 BSA 2023]. This is outlined in the proviso to section 162 Cr.P.C [section 181 BNSS 2023]. That is why, although the statement recorded by the Investigating Officer (I.O.) can be used to corroborate the witness under Section 157 of the Indian Evidence Act [Section 160 of the BSA 2023], the prosecution would not use the statement recorded under section 161 of the Criminal Procedure Code (Cr.P.C.) [Section 180 of the BNSS 2023], to corroborate the witness. In other words, Section 162 of the Cr.P.C. (Section 181 of the BNSS 2023) prohibits the use of a previous statement recorded by the Investigating Officer except for the purpose of contradiction as outlined in Section 145 of the IEA (Section 148 of the BSA 2023) inasmuch as section 162 Cr.P.C overrides Section 157 of the IEA (Section 160 of the BSA). This is the LAW.
If the previous statement that too recorded by the I.O been sent to the witness before the witness's examination then, there shall not be any contradiction or omission arises in the testimony.
The Hon’ble Supreme Court, by holding in this judgment as if, the previous statement recorded by the Investigating Officer also be used as per Section 144 of the Indian Evidence Act (Section 147 of the BSA), which is legally prohibited by Section 162 of the Code of Criminal Procedure (Section 181 of the BNSS), I believe that, the Hon’ble Supreme Court, through this judgment, is taking a significant step to amend the law petrains to the method of contradiction of witnesses through video conferencing.
That’s all.
Yours,
Ramprakash Rajagopal
Advocate, Tamilnadu.
