CRL.A./29/2017 of ASHOK Vs STATE NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 25.04.2019Judgment Pronounced On:20.09.2019

CRL.A. 29/2017

ASHOK…. AppellantVersusSTATE.... RespondentAdvocates who appeared in this case:For the Appellant: Mr. Sunil Dalal , Mr. Devashish Bhadauria andMr. Jaskaran Singh AdvsFor the Respondent: Ms. Radhika Kolluru, APP

CORAM:HON’BLE MR JUSTICE SIDDHARTH MRIDULHON’BLE MS JUSTICE ANU MALHOTRA

J U M N T

SIDDHARTH MRIDUL, J.

1. The present appeal instituted under the provision of section 374(2) of theCode of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’)assails the judgment dated 09.11.2016 and the order on sentence dated21.11.2016,rendered by learned Additional Sessions Judge (North-East), Karkardooma Courts, Delhi, in Session Case No. 44839/2015,Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’)assails the judgment dated 09.11.2016 and the order on sentence dated21.11.2016,rendered by learned Additional Sessions Judge (North-East), Karkardooma Courts, Delhi, in Session Case No. 44839/2015,

titled as ‘State vs. Ashok & Ors.’, emanating from F.I.R No. 257/2007under section 302/120-B/34 of the Indian Penal Code,1860 (hereinafterreferred to as ‘IPC’) registered at Police Station – Khajuri Khas.

2. By way of the impugned judgment and order of conviction and order on

sentence dated 09.11.2016 and 21.11.2016 respectively, the trial courtconvicted the accused Badal and Ashok as follows: -

The accused Badal was convicted and sentenced under theprovision of Section 25 Arms Act to undergo rigorous imprisonment for3 years with fine of Rs 25, 000/- and in default of payment of fine,sentenced to undergo further rigorous imprisonment for 1 year;

The accused Ashok (hereinafter referred to as 'the Appellant')was convicted and sentenced as under: -

i.Imprisonment for life and fine of Rs 3, 00,000/- under theprovisions of section 302, IPC. In default of payment offine,hehasbeensentencedtoundergorigorousimprisonment for further period of 3 years.

ii.Rigorous imprisonment for 3 years and fine of Rs 25,000/-under the provisions of Section 25 Arms Act and in default

of payment of fine, he has been sentenced to undergorigorous imprisonment for further period of 1 year.

iii.Rigorous imprisonment for 7 years and fine of Rs50,000/- under the provisions of Section 27 Arms Act andin default of payment of fine, he has been sentenced toundergo rigorous imprisonment for further period of 2

years.

All the sentences have been directed to run concurrently. The benefit

of Section 428, Cr.P.C, has been granted to the accused Badal, as well as,the appellant.

3. The case of the prosecution as elaborated by the learned Trial Court is

briefly encapsulated as follow: -

“ In brief, the case of the prosecution was built on the edifice of thestatement of PW1 Rani Ex.PW1/1 wherein she stated that she has seenthe accused Ashok and Badal were being chased by PW-3 Baleshwar.PW-2 Meenakshi was material witness. She had stated, in herstatement under section 161 of the Cr.P.C, that she had seen theaccused Ashok firing bullet at her sister Sarita and the accused Badalfiring bullet at her nephew Master Abhishek. PW-3 Baleshwar,brother-in-law (sala) of the accused was also material witness.According to him, he was present at the scene of crime. In hisstatement under section 161 Cr.P.C, he stated that the accused Ashokfired at Sarita and accused Badal fired bullet at Master Abhishek andran away and thereafter, he chased them and saw that they sat in aMaruti Car which was being driven by the accused Amit and accusedYogender@Chhotu was sitting near him. However, PW-1 Rani, PW-2Meeenakshi and PW-3 Baleshwar did not support the case of theprosecution.On 02.06.2007 at 9.30 p.m, PW-18 Insp. Ramesh Dahiyaarrested the accused Ashok near Toll Tax, opposite DLF, Loni videarrest memo Ex. PW1/3. He interrogated him. He recorded hisdisclosure statement Ex.PW12/J. In his disclosure statement, theaccused Ashok disclosed that he thrown country made pistol andcartridges in bushes on zero pusta road. PW-18 Insp. Ramesh Dahiyaproved that the country made pistol Ex. P5, two live cartridges andone empty shell were recovered pursuant to disclosure statement ofthe accused Ashok.”

4. Upon completion of investigation, the charge sheet was filed against theappellant under Sections 302/120B/34 IPC, 1860 and under Sections25/27 Arms Act, 1959; and charges were framed against the appellantunder sections 302 IPC and section 25/27 Arms Act. The Appellantpleaded not guilty and claimed trial.appellant under Sections 302/120B/34 IPC, 1860 and under Sections25/27 Arms Act, 1959; and charges were framed against the appellantunder sections 302 IPC and section 25/27 Arms Act. The Appellantpleaded not guilty and claimed trial.

5. In support of its case, the prosecution examined 23 witnesses. Thestatement of the Appellant was recorded under section 313 Cr.P.C. In hisstatement under Section 313 Cr.P.C, the Appellant has denied firing thebullet at Deceased; and further denied making any disclosure statement,as well as, the recovery of the weapon of offence being effected at hisinstance. The Appellant chose not to examine any witness in his defence;and pleaded that he has been falsely implicated in the present case.statement of the Appellant was recorded under section 313 Cr.P.C. In hisstatement under Section 313 Cr.P.C, the Appellant has denied firing thebullet at Deceased; and further denied making any disclosure statement,as well as, the recovery of the weapon of offence being effected at hisinstance. The Appellant chose not to examine any witness in his defence;and pleaded that he has been falsely implicated in the present case.

6. Broadly, the learned Trial Court has founded the conviction of theAppellant on the following grounds:Appellant on the following grounds:

“91. The accused Badal has committed an offence under section 25 ofthe Arms Act for conscious possession of the country made pistolthe Arms Act for conscious possession of the country made pistol

Ex. P14 and cartridges Ex. P15(colly).

92. According to post-mortem report Ex.PW8/B, bullet recovered fromthe dead body of the deceased Sarita. PW22 Dr. Arvind Kumar,Autopsy Surgeon preserved the said bullet in sealed parcel sealedwith seal impression ‘ÁK’. Pw-18 Insp. Ramesh Dahiya seizure thesaid parcel containing the said bullet alongwith sample seals vidememo Ex. PW12/H. On the same day, he deposited the said parcel inpolice malkhana vide entry at Sl. No. 1575 in Reg. No. 19. PW-17 HCPramod kumar proved the relevant entry at Sl. No. 1575 in Reg. No.19 Ex. PWW17/D.the dead body of the deceased Sarita. PW22 Dr. Arvind Kumar,Autopsy Surgeon preserved the said bullet in sealed parcel sealedwith seal impression ‘ÁK’. Pw-18 Insp. Ramesh Dahiya seizure thesaid parcel containing the said bullet alongwith sample seals vidememo Ex. PW12/H. On the same day, he deposited the said parcel inpolice malkhana vide entry at Sl. No. 1575 in Reg. No. 19. PW-17 HCPramod kumar proved the relevant entry at Sl. No. 1575 in Reg. No.19 Ex. PWW17/D.93. On 02.06.2007 at 9.30 p.m, PW-18 Insp. Ramesh Dahiya arrested theaccused Ashok near Toll Tax, opposite DLF Loni vide memo Ex.PW1/3. He interrogated him. He recorded his disclosure statement Ex.PW12/J. In his disclosure statement, the accused Ashok disclosed thathe thrown country made pistol and cartridges in bushes on ZEROpusta road. PW-18 Insp. Ramesh Dahiya proved that country madepistol Ex. P5, two live cartridges and on empty shell were recoveredpursuant to disclosure statement of the accused Ashok.accused Ashok near Toll Tax, opposite DLF Loni vide memo Ex.PW1/3. He interrogated him. He recorded his disclosure statement Ex.PW12/J. In his disclosure statement, the accused Ashok disclosed thathe thrown country made pistol and cartridges in bushes on ZEROpusta road. PW-18 Insp. Ramesh Dahiya proved that country madepistol Ex. P5, two live cartridges and on empty shell were recoveredpursuant to disclosure statement of the accused Ashok.

94. Relevant portion of his evidence is as under:

“Thereafter, accused Ashok led us to the bushes at adistance of 15-20 pace from the place of recovery of carand got recovered on country made pistol of .315 boreand two live cartridges from the bushes. I checked up thecountry made pistol and it was found containing oneemptyfiredcartridgesandthereafter,Itookthemeasurements of the recovery country made pistol andthe cartridges and thereafter, sketch Ex.PW12/M wasprepared by me which bears my signatures at point B.Thereafter, the country made pistol & the cartridges (twolive and one empty) were sealed in cloth parcel andsealed with the seal of ‘RK’ and taken into possessionvideseizurememoEx.PW12/Nwhichbearsmysignatures at point B.’’and got recovered on country made pistol of .315 boreand two live cartridges from the bushes. I checked up thecountry made pistol and it was found containing oneemptyfiredcartridgesandthereafter,Itookthemeasurements of the recovery country made pistol andthe cartridges and thereafter, sketch Ex.PW12/M wasprepared by me which bears my signatures at point B.Thereafter, the country made pistol & the cartridges (twolive and one empty) were sealed in cloth parcel andsealed with the seal of ‘RK’ and taken into possessionvideseizurememoEx.PW12/Nwhichbearsmysignatures at point B.’’

95.The defence did not elicit anything from his cross-examinationwhich could render the purity or authenticity of recovery, seizure andsealing of the recovered county made pistol Ex. P5 and CartridgesEx. P6 doubtful.which could render the purity or authenticity of recovery, seizure andsealing of the recovered county made pistol Ex. P5 and CartridgesEx. P6 doubtful.

96. PW-12 SI Vikram Singh corroborated him as under:

“Thereafter, accused Ashok led us to Ram Park, U.P

ahead to Zero, Pusta, and got recovered one Maruti car 800bearing registration No. DL 6 CF 2731. The said car wastaken into possession vide seizure memo Ex. PW12/Lwhich bears my signatures at point ‘A’.Accused Ashokalso got recovered one country made pistol of 315 bore andtwo live cartilages from the bushes which were at distanceof about 15-20 paces from the place of recovery of saidMaruti car. Country made pistol was checked up and onchecking, it was found containing empty cartridge(fired).I.O.thenpreparedthe sketchof the country madepistol/katta and cartridges (two live and one empty) whichis Ex. PW12/M which bears my signature at point ‘A’.Thereafter, the said county made pistol and cartilages (twolive and one empty) were sealed in cloth pullanda, whichwas sealed with the seal of ‘RK’ and was taken intopossession vide seizure memo Ex. PW12/N which bears mysignatures at point ‘A’. ”

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98. PW-18 Insp. Ramesh Dahiya deposited the recovered country madepistol Ex. P5 and cartridges Ex. PW6(colly) in police malkhana videentry at Sl .No 1575 in Reg No.19. PW-17 HC Pramod kumar provedthe relevant entry in Reg No.19 Ex. PW17/B. PW-15 Ct. Ajeet Singhtaken the said sealed parcel in FSL on 20.7.2007 vide RC No. 63/21Ex.PW17/G. He deposited the said sealed parcel in FSL videacknowledgement Ex.PW17/H. The defence did not dispute that thesealed parcel was tampered in police malkhana.pistol Ex. P5 and cartridges Ex. PW6(colly) in police malkhana videentry at Sl .No 1575 in Reg No.19. PW-17 HC Pramod kumar provedthe relevant entry in Reg No.19 Ex. PW17/B. PW-15 Ct. Ajeet Singhtaken the said sealed parcel in FSL on 20.7.2007 vide RC No. 63/21Ex.PW17/G. He deposited the said sealed parcel in FSL videacknowledgement Ex.PW17/H. The defence did not dispute that thesealed parcel was tampered in police malkhana.

99. According to PW-13 Dr. Puneet Puri, Ballistics Expert, the bullet‘EB1’ recovered from the dead body of the deceased Sarita was firedfrom country made pistol Ex. P5 recovered at the instance of theaccused Ashok.‘EB1’ recovered from the dead body of the deceased Sarita was firedfrom country made pistol Ex. P5 recovered at the instance of theaccused Ashok.

100. Ballistics Report Ex. PW 13/A, on this aspect, has already beenreproduced above. Relevant portion of the said ballistics report isunder:reproduced above. Relevant portion of the said ballistics report isunder:

“(9) The individual characteristic of striation presenton evidence bullet marked exhibit ‘EB1’ and on test firedbullet marked ‘TB1’ were examined and compared underthe Comparison Microscope Model Leica DMC andwere found identical. Hence exhibit ‘EB1’has beendischarged through the country made pistol .315 boremarked exhibit ‘F1’ above.”bullet marked ‘TB1’ were examined and compared underthe Comparison Microscope Model Leica DMC andwere found identical. Hence exhibit ‘EB1’has beendischarged through the country made pistol .315 boremarked exhibit ‘F1’ above.”

101. The accused Ashok, in his examination under section 313 of the

Cr.P.C.., did not offer any explanation for possessing country madepistol Ex. P5 used for firing bullet recovered from the dead body ofthe deceased Sarita, as under:

“ Question 63: Whereas it has come in evidence against youthat the bullet EB1 recovered from the dead body of Saritawas fired through country made pistol Ex. P-5 which wasrecovered from your instance and as such, you owe anexplanation as to your knowledge regarding the saidcountry made pistol Ex. P5 . What you have to say?that the bullet EB1 recovered from the dead body of Saritawas fired through country made pistol Ex. P-5 which wasrecovered from your instance and as such, you owe anexplanation as to your knowledge regarding the saidcountry made pistol Ex. P5 . What you have to say?Ans. I do not know.

Question 64: Whereas it has come in evidence against youthat you were in the exclusive and conscious possession ofthe country made pistol Ex. P-5 and two live cartridgesand one fired cartridge Ex. P6 (colly) which are fired armsand ammunition under the Arms Act. You owe anexplanation as to your possession as well as knowledge ofthe said country made pistol and live cartridge and firedcartridge. What you have to say?that you were in the exclusive and conscious possession ofthe country made pistol Ex. P-5 and two live cartridgesand one fired cartridge Ex. P6 (colly) which are fired armsand ammunition under the Arms Act. You owe anexplanation as to your possession as well as knowledge ofthe said country made pistol and live cartridge and firedcartridge. What you have to say?Ans. I do not know. ”

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106. Since the accused Ashok has not given any explanation forpossessing country made pistol Ex. P5 used for firing bullet recoveredfrom the dead body of the deceased Sarita, this court has no hesitationin reaching to the conclusion that he is the author of the crime andfired bullet at the deceased Sarita with country made pistol Ex. P5.Accordingly, the accused Ashok is convicted under section 302 IPCand 27 of the Arms Act 1959.possessing country made pistol Ex. P5 used for firing bullet recoveredfrom the dead body of the deceased Sarita, this court has no hesitationin reaching to the conclusion that he is the author of the crime andfired bullet at the deceased Sarita with country made pistol Ex. P5.Accordingly, the accused Ashok is convicted under section 302 IPCand 27 of the Arms Act 1959.

107. PW-21 Sh. Jaspal Singh, DCP, North- East proved sanction orderEx. PW21/A for the prosecution of the accused Ashok under section25 of the Arms Act for possessing fire arm and ammunition incontravention of section 3 of the Arms Act, 1956 as required undersection 39 of the Arms Act, 1959. Accordingly, the accused Ashok isconvicted under section 25 of the Arms Act, 1956. The accused Badalis also convicted under section 25 of the Arms Act, 1956. ”Ex. PW21/A for the prosecution of the accused Ashok under section25 of the Arms Act for possessing fire arm and ammunition incontravention of section 3 of the Arms Act, 1956 as required undersection 39 of the Arms Act, 1959. Accordingly, the accused Ashok isconvicted under section 25 of the Arms Act, 1956. The accused Badalis also convicted under section 25 of the Arms Act, 1956. ”

7. Learned counsel appearing on behalf of the appellant urged that the

appellant has been falsely implicated in the case, as there are numerous

discrepancies and contradictions in the story of the prosecution;consequently, the same cannot be relied upon; moreover, the prosecutionhas failed to prove its case against the appellant beyond reasonabledoubt, on account of the following circumstances :-

i.That PW-1 Rani, who was the main eye-witness in the

present case, turned hostile in court, whilst deposing

contrary to her previous statement recorded under Section161 Cr.P.C, against the appellant;161 Cr.P.C, against the appellant;

ii.That in addition to PW-1, PW-2 & PW-3 also, turned hostile

in court, contrary to their statements recorded under section161 Cr.P.C, belying the case of the prosecution;161 Cr.P.C, belying the case of the prosecution;

iii.That the prosecution has failed to established the motive forthe appellant to commit the present offence.the appellant to commit the present offence.

iv.That no explanation has been given by the prosecution, qua

the suspicious circumstances in which the recovered countrymade pistol and bullets, were retained by the police for aperiod of 1 month, and also, the condition of the same;made pistol and bullets, were retained by the police for aperiod of 1 month, and also, the condition of the same;

v.That the prosecution has further failed to provide anyexplanation regarding the questionable circumstance inwhich PW-1 allegedly signed the arrest memo, as well as,explanation regarding the questionable circumstance inwhich PW-1 allegedly signed the arrest memo, as well as,

her presence at the time of arrest of the appellant, at the toll

tax plaza;

8. Learned counsel appearing on behalf of the appellant, has placed reliance

on the following judgments in support of his contentions: -

a) Rameshwar Singh v. State of Jammu & Kashmir,AIR 1972 SC 102;AIR 1972 SC 102;

b) Mukesh @ Girdi v. The State (GNCT) of Delhi,Crl.A.773/2003 decided on 02.11.2009;Crl.A.773/2003 decided on 02.11.2009;

c) Abdulwahab Abdulmajid Baloch v. State of Gujarat,

2009 (11) SCC 625;

d) Dudh Nath Pandey v. State of Uttar Pradesh,1981 (2) SCC 166;1981 (2) SCC 166;

e) Hatti Singh v. State of Haryana, 2007 (12) SCC 471;

f) Nafis v. State NCT of Delhi, 2011(2) JCC 1403 ;

g) Sameer @ Mustakim v. State, Crl.A. 17/2018, decided

on 12.04.2018

9. Percontra,Ms.RadhikaKolluru,learnedAdditionalPublicProsecutor appearing on behalf of the State submitted that, since thefactum of recovery of the weapon of offence - from the appellant atProsecutor appearing on behalf of the State submitted that, since thefactum of recovery of the weapon of offence - from the appellant at

his instance - had been established, along with, the linking of thebullet recovered from the body of the deceased with the weapon ofoffence, employed in the commission of the crime in question;

therefore the impugned judgment of the Trial Court does not warrantany interference and must be upheld in its entirety; and further, whilstsupporting the impugned judgment contended that there was notampering of the evidence supervening, particularly in the light of thetestimonies of PW18 Insp. Ramesh Dahiya and PW17 HC ParmodKumar.

10. Lastly, Learned Additional Public Prosecutor submits that, theappellant failed to avail of the opportunity available to him whilerecording his statement under Section 313 Cr.P.C, to explain theseincriminating circumstances against him, thereby leading inescapablyto the only conclusion, the one establishing the guilt of the appellantin the commission of the crime. In order to support this contention,the learned Additional Public Prosecutor placed reliance upon thefollowing judgments: -appellant failed to avail of the opportunity available to him whilerecording his statement under Section 313 Cr.P.C, to explain theseincriminating circumstances against him, thereby leading inescapablyto the only conclusion, the one establishing the guilt of the appellantin the commission of the crime. In order to support this contention,the learned Additional Public Prosecutor placed reliance upon thefollowing judgments: -

a) Gulab Chand v. State of M.P, (1995) 3 SCC 574;

b) Madanlalv.TheStateofPunjab,AIR 1967 Supreme Court 1590;AIR 1967 Supreme Court 1590;

c) Willie (William) Slaney v. State of Madhya Pradesh,AIR 1956 SC 116;AIR 1956 SC 116;

d) Rameshbhai Mohanbhai Koli and others v. State of

Gujarat, (2011) 11 SCC 111;

e) Mahabir Singh v. State, Crl.A. 498/2007, decided on

31.03.16.

11. We have heard counsel appearing on behalf of the parties, and examinedand appreciated the entire evidence on record.and appreciated the entire evidence on record.

12.Having heard the learned counsel on either side, and after going throughthe material available on record, we proceed to consider the contentionsraised by them in seriatim. The first and foremost contention raised bythe learned counsel appearing for the accused-appellant is with regard tothe credence to be attached to the testimonies of the hostile witnesses.the material available on record, we proceed to consider the contentionsraised by them in seriatim. The first and foremost contention raised bythe learned counsel appearing for the accused-appellant is with regard tothe credence to be attached to the testimonies of the hostile witnesses.

13. In the present case, since, PW-1 Rani, PW-2 Meenakshi and PW-3Baleshwar turned hostile; it would be necessary and appropriate toexamine and weigh the evidentiary value of the testimony of the hostilewitnesses. The Hon'ble Supreme Court of India in the case ofGovindaraju v. State, reported as (2012) 4 SCC 722, whilst holding thatthe evidence of hostile witness ought not to stand effaced altogether,and that the same can be accepted on careful scrutiny, to the extentfound dependable, and duly corroborated by other reliable evidenceavailable on record, observed as follows.:Baleshwar turned hostile; it would be necessary and appropriate toexamine and weigh the evidentiary value of the testimony of the hostilewitnesses. The Hon'ble Supreme Court of India in the case ofGovindaraju v. State, reported as (2012) 4 SCC 722, whilst holding thatthe evidence of hostile witness ought not to stand effaced altogether,and that the same can be accepted on careful scrutiny, to the extentfound dependable, and duly corroborated by other reliable evidenceavailable on record, observed as follows.:

"36. It is also not always necessary that wherever the witness turnedhostile, the prosecution case must fail. Firstly, the part of thestatement of such hostile witnesses that supports the case of theprosecution can always be taken into consideration. Secondly, wherethe sole witness is an eyewitness who can give graphic account ofhostile, the prosecution case must fail. Firstly, the part of thestatement of such hostile witnesses that supports the case of theprosecution can always be taken into consideration. Secondly, wherethe sole witness is an eyewitness who can give graphic account of

the events which he had witnessed, with some precision cogently andif such statement is corroborated by other evidence, documentary orotherwise, then such statement in face of the hostile witness can stillbe ground for holding the accused guilty of the crime that wascommitted. The court has to act with greater caution and accept suchevidence with greater degree of care in order to ensure that justicealone is done. The evidence so considered should unequivocally pointtowards the guilt of the accused."

14. In this regard, it is pertinent to point out that, in the case of

Mrinal Das v. State of Tripura, reported as (2011) 9 SCC 479, the

Hon’ble Supreme Court of India has held as under:

“ 67.It is settled law that corroborated part of evidence of hostilewitness regarding commission of offence is admissible.The factthat the witness was declared hostile at the instance of the PublicProsecutor and he was allowed to cross-examine the witness furnishesno justification for rejecting en bloc the evidence of the witness.However, the court has to be very careful, as prima facie, witnesswho makes different statements at different times, has no regard forthe truth. His evidence has to be read and considered as whole with aview to find out whether any weight should be attached to it. Thecourt should be slow to act on the testimony of such witness,normally; it should look for corroboration with other witnesses.Merely because witness deviates from his statement made in theFIR, his evidence cannot be held to be totally unreliable. To make itclear that evidence of hostile witness can be relied upon at least up tothe extent; he supported the case of the prosecution.The evidence ofa person does not become effaced from the record merely becausehe has turned hostile and his deposition must be examined morecautiously to find out as to what extent he has supported the caseof the prosecution.

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69. It is well settled that in criminal trial, credible evidence of evenhostile witnesses can form the basis for conviction. In other words, inthe matter of appreciation of evidence of witnesses, it is not thenumber of witnesses but quality of their evidence”hostile witnesses can form the basis for conviction. In other words, inthe matter of appreciation of evidence of witnesses, it is not thenumber of witnesses but quality of their evidence”

15. Therefore, the legal position that obtains is that, the evidence of ahostile witness remains admissible, and is available for Court to relyon the dependable part thereof, as found acceptable and dulycorroborated by other reliable evidence, available on record. Whetherthe testimony of hostile witness subject to scrutiny may be relied ornullified would depend on the circumstances of each case. It could beused for corroboration or be corroborated and relied upon or nullifiedforavailabilityofbetterevidence.[Ref.KoliLakhmanBhaiChanabhai v. State of Gujarat, (1999) 8 SCC 624].16. In this regard, we consider it just necessary and appropriate to extractthe translated initial statement (Rukka) of PW1, Rani, who was presentat the scene of crime as recorded by PW12, SI Vikram Singh, vidememo Ex.PW1/1, as follow: -

" xxx.....xxx.....xxx

Statement of Smt. Rani w/o Sh. Mool Chand R/O Ambey Colony,15 foota Road, Chauhan Patti, PS Khajuri, Delhi, Age 40 years, Ph.No. [REDACTED].

Stated that I am residing alongwith my family at the afore-state address on rent. I am resident of Village Rasulpur, P.OKhaurja, District Balandshahar, U.P. My husband Sh. Mool Chandis missing since 4 years. I married my elder daughter Sarita to Sh.Chhavi Lal, resident of Village Nagla, near Kot ka pul, Dadri,U.P before three years. My elder daughter sarita had 1[1/2]year oldson namely Abhishek. She was in family way. Since 7-8 dayss, my

daughter Sarita came to my afore-said house. Before 4-5 months. Ibecame acquainted to one person namely Baleshwar at the time ofpurchase of plot. He started visiting my house. We becamefriends. He used to give me commission in account of sale andpurchase of plots. He used to help me monetarily. Before onemonth, Suman wife of Baleshwar had suspicion on our friendship.One day when I went to village of Baleshwar for collecting money,wife of Baleshwar abused (bura bhala kaha) me. I asked her tomake her husband to understand but Baleshwar kept on visiting myhouse. Before 10-12 days, Ashok, brother-in- law (sala) ofBaleshwar come to my house and asked me to put an end torelationship with Baleshwar and threatened to kill me. Baleshwarkept on visting my house. On 01.06.2007 at about 6.00 p.m.,Baleshwar and my younger daughter Minakshi were present withme in my house. My elder daughter Sarita was lying outside thehouse on cot with his son Abhishek. After some time, Baleshwarwent to near the main door of the house. At once, there was soundof firing of gun-shot. Immediately, I came out. I saw that mydaughter Sarita had sustained bullet injuries on her chest near herneck and the child Abhishek had gun shot injuries on his chest andhand. Blood was emanating. Baleshwar was chasing the said twoboys. One of them was Ashok, brother-in-law (sala) of Baleshwarwho was already know to me. Both of them managed to escape bysitting in white Maruti Car which was at as some distance.Baleshwar returned and told me that the second boy was Badal whowas already known to me. 2-3 boys were also sitting in the said car.Baleshwar knew them. Ashok and Badal in association with hisother associate caused murder of my daughter Sarita and childAbhishek by firing bullets. Legal action be taken. I have heardstatement. It is correct"

17. PW1, Rani, who was the main eye witness turned hostile, therefore her

testimony cannot be relied upon wholly, but her initial statement,Ex.PW1/1 is considered appropriate in so far as it is reliable andcontemporaneous and corroborated by other evidence on record for

establishing the commission of offence.

18. We consequently, hold that the testimonies of PW-1, PW-2 and PW-3,as available on record who had subsequently turned hostile in court, canbe relied in the present case, to the extent to which they are dependable;and corroborated by the evidence, to prove the commission of theoffence alleged against the appellant, and that the same are not effacedentirely or altogether.as available on record who had subsequently turned hostile in court, canbe relied in the present case, to the extent to which they are dependable;and corroborated by the evidence, to prove the commission of theoffence alleged against the appellant, and that the same are not effacedentirely or altogether.

19. Another contention urged by the learned counsel appearing on behalfof the appellant was that, since the prosecution’s witnesses had turnedhostile, the prosecution was not able to establish the motive for thecommission of offence by the appellant, and that therefore, in absence ofa strong motive, the appellant cannot be held guilty of the chargesframed against him.of the appellant was that, since the prosecution’s witnesses had turnedhostile, the prosecution was not able to establish the motive for thecommission of offence by the appellant, and that therefore, in absence ofa strong motive, the appellant cannot be held guilty of the chargesframed against him.

20. In this regard, it is observed that PW-1, Rani, in her initial statement,Ex. PW1/1, as well as, her statement under section 161 Cr.P.C, given tothe police, has categorically attributed motive for the commission ofthe murder and that she has seen the accused firing at the deceased; butin her statement under section 164 Cr.P.C, she has denied the same.Ex. PW1/1, as well as, her statement under section 161 Cr.P.C, given tothe police, has categorically attributed motive for the commission ofthe murder and that she has seen the accused firing at the deceased; butin her statement under section 164 Cr.P.C, she has denied the same.

21. Even otherwise, the Hon’ble Supreme Court of India, in Sukhpal Singhvs. State of Punjab, reported as 2019 (3) SCALE 271, held that thevs. State of Punjab, reported as 2019 (3) SCALE 271, held that the

inability of the prosecution to establish motive in case of thecircumstantial evidence is not always fatal to the prosecution case. Therelevant observations are elaborated as follows: -

“14. We are not inclined to place any reliance on appellant’s version thatthe gun was actually surrendered by him and making use of the gun, ashot was fired and he has been implicated particularly as he has notproved that he has been placed under suspension. Furthermore, in fact,P.W.15 has denied the allegation that the bullet was sent after firing.The only inevitable conclusion we can reach is that the gun wasrecovered from him and the bullet which has been found to havecaused the fatal injury to the deceased and which was recovered fromthe body of the deceased has been fired from the appellant’s gun.the gun was actually surrendered by him and making use of the gun, ashot was fired and he has been implicated particularly as he has notproved that he has been placed under suspension. Furthermore, in fact,P.W.15 has denied the allegation that the bullet was sent after firing.The only inevitable conclusion we can reach is that the gun wasrecovered from him and the bullet which has been found to havecaused the fatal injury to the deceased and which was recovered fromthe body of the deceased has been fired from the appellant’s gun.15. The last submission which we are called upon to deal with is thatthere is no motive established against the appellant for committingmurder. It is undoubtedly true that the question of motive mayassume significance in prosecution case based on circumstantialevidence. But the question is whether in case of circumstantialevidence inability on the part of the prosecution to establish amotive is fatal to the prosecution case. We would think that whileit is true that if the prosecution establishes motive for theaccused to commit crime it will undoubtedly strengthen theprosecution version based on circumstantial evidence, but that isfar cry from saying that the absence of motive for thecommission of the crime by the accused will irrespective of othermaterial available before the court by way of circumstantialevidence be fatal to the prosecution. In such circumstances, onaccount of the circumstances which stand established by evidenceas discussed above, we find no merit in the appeal and same shallstand dismissed.”there is no motive established against the appellant for committingmurder. It is undoubtedly true that the question of motive mayassume significance in prosecution case based on circumstantialevidence. But the question is whether in case of circumstantialevidence inability on the part of the prosecution to establish amotive is fatal to the prosecution case. We would think that whileit is true that if the prosecution establishes motive for theaccused to commit crime it will undoubtedly strengthen theprosecution version based on circumstantial evidence, but that isfar cry from saying that the absence of motive for thecommission of the crime by the accused will irrespective of othermaterial available before the court by way of circumstantialevidence be fatal to the prosecution. In such circumstances, onaccount of the circumstances which stand established by evidenceas discussed above, we find no merit in the appeal and same shallstand dismissed.”

22. Motive does assume great importance, but to say that the absence of

motive would dislodge the entire prosecution story is giving this onefactor an importance which is not due. Motive is in the mind of theaccused and can seldom be fathomed with any degree of accuracy. (Ref.Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90).factor an importance which is not due. Motive is in the mind of theaccused and can seldom be fathomed with any degree of accuracy. (Ref.Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90).

23.Learned counsel appearing on behalf of the appellant, further urged thatthe circumstances in regard to the recovery of weapon of offence,recovered by the police officer, in the present case, are suspicious anddistrustful. On the contrary, learned APP whilst asserting that there wasno tampering of evidence, invited our attention to the testimonies ofPW18, Insp. Ramesh Dahiya and PW17, HC Pramod Kumar. LearnedAPP further submitted that conjoined reading of the testimonies of PW18 & PW 17 would, conclusively demonstrate that no tampering ofevidence, qua to the recovery of weapon of offence, could be inferred.

24. In this behalf it is observed that, the country made pistol Ex.P5, used asweapon of offence was recovered by the police at the instance of theappellant vide memo Ex.PW12/N on 02.06.2007. In our considered viewfor the proper adjudication of the present appeal, we find it just andnecessary to extract the testimony of the PW18, Ins. Ramesh Dahiya, inthis regard as follows: -weapon of offence was recovered by the police at the instance of theappellant vide memo Ex.PW12/N on 02.06.2007. In our considered viewfor the proper adjudication of the present appeal, we find it just andnecessary to extract the testimony of the PW18, Ins. Ramesh Dahiya, inthis regard as follows: -

“ xxxx…..xxxx….xxxx….. xxxx…..xxxx….xxxx…..

On 2.6.2007, I along with SI Vikram Singh, HC Sompal & Ct.Naresh left the police station in search of the accused persons. Whenwe reached at Block Sonia Vihar at about 9.20 p.m, I receivedsecret information that accused Ashok was standing near Toll Tax.Thereafter we immediately proceeded to Toll Tax and on reachingthere, accused Ashok present in the court who was standing there wasapprehended at the instance of secret informer. Accused Ashok was

interrogated. In the meantime, Rani also reached there and sheidentified accused Ashok. Thereafter accused Ashok was arrested videarrest memo Ex. PW-1/3 which bears my signatures at point B. Hispersonal search was also conducted vide personal search memo ExPW-12/K which bears my signature at point B. Thereafter accusedAshok was interrogated and during the said course, he madedisclosure statement Ex. PW- 12/J which bears my signatures at pointB. Thereafter accused Ashok led the police party to Rama Park onKhajoori Pushta Road and from there he got recovered Maruti car no.DL-6CF-2731 of white color. The said car was taken into possessionby me vide seizure memo Ex.PW 12/L which bears my signature atpoint B. Thereafteraccused Ashok led us to the bushes at distanceof 15-20 paces from the place of recovery of car and got recoveredone country made pistol of .315 bore and two live cartridges from thebushes. I checked up the country made pistol and it was foundcontaining one empty fired cartridge and thereafter I took themeasurements of the recovered country made pistol and the cartridgeand thereafter sketch Ex.PW-12/M was prepared by me which bearsmy signatures at point B. Thereafter the country made pistol & thecartridges (two live and one empty) were sealed in cloth parcel andsealed with the seal of RK and taken into possession vide seizurememo Ex.PW-12/N which bears my signatures at point B. Thereafteraccused Ashok led the police party to the spot i.e in front of house ofRani, Ambe colony, Chauhan Patti, Delhi and pointed the spot.Pointing out the memo Ex.PW18/D was prepared by me in this regardwhich bears my signatures at point and signatures of accused Ashokat point X. I recorded the statement of Rani & SI Vikram singh. Thecase property was deposited with the MHCM and the accused was putin the lock up.

xxxx……xxxx…..xxxxx….xxxx…….xxxx……xxxx….

XXXXXXX by Sh.Rakesh Kochar, ld. Counsel for all the accused.

When I reached at the spot on 01/06/2007, I found crowd presentthere. I had not found the person, who had informed the PCRregarding the incident. I had not asked any public person to join theproceeding at the spot and I had not specific reason for not joiningthem. All the memos prepared at the spot on that day were in the hand

writing of SI Vikram. It is incorrect to suggest that I was not present atthe spot or that no documents were prepared by me at the spot or that Ihad not visited the spot at any point of time. We remained at the spotfor about 2 hours. It is wrong to suggest that all the memos wereprepared later on in the Police Station. The spot was not thicklypopulated area.

I had not joined the employees of the Toll tax, near khajoori Pustaroad in the raiding party on 02/06/2007. It is wrong suggest that theaccused Ashok was falsely implicated in the case. I did not put anymark of identification on the recovered katta and cartridges fromAshok after recovery and before seizure. We reached at the place ofrecovery at about 9.20 p.m. The area was dark at that time. I preparedthe seizure memos while sitting inside the official vehicle. It is correctthat I had not obtained the signature of any public person on theseizure memos. It is wrong suggest that nothing was recovered fromthe accused Ashok or that the Katta, cartridges and the car wereplanted against the accused. It is wrong suggest that I had not arrestedthe accused Suman.

It is wrong suggest that accused Badal and Amit were falselyimplicated in this case or that no disclosure statement of the accusedpersons were recorded by me. It is correct that I had not taken thephotographs of katta and cartridges recovered from the accused Badal.It is correct that I had not put any specific mark on the recovered kattaand cartridges prior to its seizure. It wrong suggest that the katta andcartridges were planted against the accused Badal.

It is wrong suggest that complainant Rani had not given anystatements to me or that her statement was fabricated by us. I haddeposited the pulanda on 02/06/2007 at about 11.15 p.m and alsodeposited the pulanda on 25/08/2007 at about 10.30 p.m in themalkhana.

At the time of the arrest of the accused Ashok, we did not offeredour search to him. It is wrong suggest that nothing was recovered fromthe accused Ashok and Badal or that all the kattas and cartridges wereplanted against them or that all the documents were prepared later on Iam deposing falsely.”

25. Learned Additional Public Prosecutor also urged that, no tampering of

evidence occurred and the authenticity of the testimony of PW18 was

corroborated by the testimony of HC Pramod Kumar (PW17). Therefore,we consider it necessary and appropriate in this regard, to extract thetestimony of PW17 is extenso as hereunder:

“On 1.6.2007, I was posted at PS Kjhajoori Khas as MHCM. On thatday Ins. Ramesh Dahiya had deposited five clothes parcels duly sealedwith the seal of RK and one cot (Charpai) with me and I made entry Iregister No.19 at Srl. No 1572. Photocopy of the said entry on recordis Ex. PW-17/A.

On 02.06.2007, Ins. Ramesh Dahiya also deposited with me onecloth parcel duly sealed with the seal of RK, with me and I made entryin this regard in registered No. 19 at Srl.No.1575. Photocopy of thesaid entry on record is Ex. PW-17/B.

On the same day, Ins. Ramesh Dahiya has also deposited withme one Maruti car bearing registration no. DL-6C-F-2731, and I madeentry on the above said serial number 1575 and photocopy of the saidentry on record in Ex. PW-17/C.

Ins. Ramesh Dahiya also deposited with me six pullandas andtwo sample seals duly sealed with the seal of AK and I made entry inregister no.19 in this regard at Srl. No. 1575 and photocopy of thesame on record is Ex.PW-17/D.

On 25.8.2007, Ins. Ramesh Dahiya had deposited with me onecloth parcel duly sealed with the seal of RK and I made entry inregister no. 19 at Srl. No. 1723 and photocopy of the said entry onrecord is Ex. PW-17/E.

On 20.07.2007, four parcels i.e, plastic jar containing fourwads of 12 bore, one parcel containing country made pistol and twolive cartridge and one fired cartridges and one bottle containing palletsrecovered from the dead body of Abhishek and one sealed bottlecontaining bullets recovered from the body of deceased sarita, weresent vide road certificate no. 63/21 through Ct. Ajit Singh to FSLRohini. I made entry in register no.19 in this regard and photocopy ofthe same is Ex. PW 17/F. Photocopy of Road certificate no. 63/21 onrecord is Ex. PW17/G. On the same day Ct. Ajit Singh handed overthe acknowledgement to me regarding depositing the above saidarticles in FSL rohini. Photocopy of the same in Ex.PW17/H.

On 7.09.2007, one cloth parcel duly sealed with the seal of RK

containing country made pistol and two live and one fired cartridgewas sent to FSL Rohini vide road certificate No. 90/21 through Ct.Sanjeev to FSL Rohini. I made entry in register no 19 in this regardand photocopy of the same is Ex.PW17/J. Photocopy of Roadcertificate no 90/21 on record is Ex. PW17/K. On the same day Ct.Sanjeev handed over the acknowledgment to me regarding depositingthe above said articles in FSL Rohini. Photocopy of the same in Ex.PW-17/L.

On 20.07.2007 I sent 10 parcels and two sample seals of AKwere sent vide road certificate no. 64/21 through Ct . Ajit Singh ToFSL Rohini. I made entry in registered no19 in this regard andphotocopy of the same is already Ex. PW17/F. Photocopy of roadcertificate no. 64/21 on record is Ex.PW17/M. On the same day Ct.Ajit Singh handed over the acknowledgment to me regardingdepositing the above said articles in FSL Rohini. Photocopy of thesame is Ex. PW17/N.

On 25.09.2007, I received four pullandas duly sealed with theseal of FSL, one FSL result and one sample seal of FSL through Ct.Ajeet and I made entry in register no. 19 in this regard. Photocopy ofthe same is Ex. PW17/O.

On 28.01.2008, I received FSL result and three envelopeparcels duly sealed with the seal of FSL and I made entry in registerno. 19 in this regard. Photocopy of the same is Ex. PW17/P.

On 21.11.2007, I received 8 envelope parcels, one FSL result andone plastic katta, through HC Hukam Singh I made entry in registerno.19 in this regard and photocopy of the same is Ex. PW-17/Q.

On 13.9.2007, car was released to AS Aggrawal on the directionof learned MM and I made entry in registered no. 19 photocopy inwhich is Ex. PQ 17/R.

Till the time, the case property and sample parcels remained in mycustody, the same were not tampered with in any manner.”

26. As is axiomatic, in the present case, the weapon of offence was

recovered at the instance of the accused-appellant himself, from placewhich only he would have been aware of, and subsequently upon therecording of his disclosure statement vide memo Ex. PW12/J, in the

presence of PW18 Insp. Ramesh Dahiya. In establishing the guilt of theaccused, time factor, is important, particularly in the facts andcircumstances of the present case.

27.The Hon’ble Supreme Court of India in Gulab Chand (Supra) while

noting the importance of time factor vis-à-vis recovery of incriminatory

articles from an accused, held that: -“ 4. …….……. It is true that simply on the recovery of stolen articles,no inference can be drawn that person in possession of the stolenarticles is guilty of the offence of murder and robbery. But culpabilityfor the aforesaid offences will depend on the facts and circumstancesof the case and the nature of evidence adduced. It has been indicatedby this Court in Santhanakrishnan v. State of Rajasthan, AIR (1956)SC 54 that no hard and fast rule can be laid down as to what inferenceshould be drawn from certain circumstances. It has also beenindicated that where only evidence against the accused is recoveryof stolen properties, then although the circumstances may indicatethat the theft and murder might have been committed at the sametime, it is not safe to draw an inference that the person inpossession of the stolen property had committed the murder. Anote of caution has been given by this court by indicating thatsuspicion should not take the place of proof. It appears that the HighCourt in passing the impugned judgment has taken note of the saiddecision of this Court. But as rightly indicated by the High Court thesaid decision is not applicable in the facts and circumstances of thepresent case. The High Court has placed reliance on the other decisionof this Court rendered in Tulsiram v. State, AIR (1954) SC 1. In thesaid decision, this court has indicated that the presumptionpermitted to be drawn under Section 114, illustration (a) of theEvidence Act has to be read along with the 'important time factor'.If the ornaments in possession of the deceased are found inpossession of person soon after the murder, presumption ofguilt may be permitted. But if Several months had expired in theinterval, the presumption cannot be permitted to be drawn havingregard to the circumstances of the case. In the instant case, it hasbeen established that immediately on the next day of the murder, theaccused Gulab Chand had sold some of the ornaments belonging tothe deceased and within 3-4 days, the recovery of the said stolenarticles was made from his house, at the instance of the accused. Suchno inference can be drawn that person in possession of the stolenarticles is guilty of the offence of murder and robbery. But culpabilityfor the aforesaid offences will depend on the facts and circumstancesof the case and the nature of evidence adduced. It has been indicatedby this Court in Santhanakrishnan v. State of Rajasthan, AIR (1956)SC 54 that no hard and fast rule can be laid down as to what inferenceshould be drawn from certain circumstances. It has also beenindicated that where only evidence against the accused is recoveryof stolen properties, then although the circumstances may indicatethat the theft and murder might have been committed at the sametime, it is not safe to draw an inference that the person inpossession of the stolen property had committed the murder. Anote of caution has been given by this court by indicating thatsuspicion should not take the place of proof. It appears that the HighCourt in passing the impugned judgment has taken note of the saiddecision of this Court. But as rightly indicated by the High Court thesaid decision is not applicable in the facts and circumstances of thepresent case. The High Court has placed reliance on the other decisionof this Court rendered in Tulsiram v. State, AIR (1954) SC 1. In thesaid decision, this court has indicated that the presumptionpermitted to be drawn under Section 114, illustration (a) of theEvidence Act has to be read along with the 'important time factor'.If the ornaments in possession of the deceased are found inpossession of person soon after the murder, presumption ofguilt may be permitted. But if Several months had expired in theinterval, the presumption cannot be permitted to be drawn havingregard to the circumstances of the caseclose proximity of the recovery, which has been indicated by thisCourt as an "important time factor", should not be lost sight of indeciding the present case. It may be indicated here that in laterdecision of this Court in Earabharappa v. State of Karnataka, [1983]2 SCC 330, this Court has held that the nature of the presumption andillustration (a) under Section 114 of the Evidence Act must dependupon the nature of evidence adduced. No fixed time limit can be laiddown to determine whether possession is recent or otherwise and eachcase must be judged on its own facts. The question as to what amountsto recent possession sufficient to justify the presumption of guiltvaries according as the stolen article is or is not calculated to passreadily from hand to hand. If the stolen articles where such as werenot likely to pass readily from hand to hand, the period of one yearthat elapsed cannot be said to be too long particularly when theappellant had been absconding during that period. In our view, it hasbeen rightly held by the High Court that the accused was not affluentenough to possess the said ornaments and from the nature of theevidence adduced in this case and from the recovery of the saidarticles from his possession and his dealing with the ornaments of thedeceased immediately after the murder and robbery reasonableinference of the commission of the said offence can be drawn againstthe appellant. Excepting an assertion that the ornaments belonged tothe family of the accused which claim has been rightly discarded, noplausible explanation for lawful possession of the said ornamentsimmediately after the murder has been given by the accused. In thefacts of this case, it appears to us that murder and robbery havebeen proved to have been integral parts of the same transactionand therefore the presumption arising under illustration (a) ofSection 114 Evidence Act is that not only the appellant committedthe murder of the deceased but also committed robbery of herornaments. We therefore do not find any reason to interfere with theimpugned decision of the High Court and accordingly this appeal failsand is dismissed.”

28.In the present case, the prosecution has been able to establish that the

incident occurred on 01.06.2007, and immediately thereafter on02.06.2007, recovery of weapon of offence, was made at the instance ofthe accused subsequent upon his disclosure statement, vide memoEx. PW12/J. The recovery has been made in reasonable time factor

and no unreasonable large period is present between the time of theincident and the time of the recovery of the weapon of the offence.There is further no material or evidence to suggest that the accused wasfalsely implicated in the present case.

29. Lastly, the learned counsel appearing on behalf of the appellant allegedthattheprosecutionwasunabletoestablishthequestionablecircumstances in which PW-1, Rani, signed the arrest memo Ex. PW1/3,as well as, her presence at the toll tax plaza.thattheprosecutionwasunabletoestablishthequestionablecircumstances in which PW-1, Rani, signed the arrest memo Ex. PW1/3,as well as, her presence at the toll tax plaza.

30. In this regard, it is well settled law that, courts cannot start with apresumption that police records are untrustworthy. As proposition oflaw, the presumption should be the other way around, that official actsof the police have been performed regularly, which is wise principle ofpresumption and recognized even by the legislature. Hence, when apolice officer gives evidence in Court that certain article was recoveredby him on the strength of the statement made by the accused it is open tothe Court to believe the version to be correct if it is not otherwise shownto be unreliable. It is for the accused, through cross-examination ofwitnesses or any other material, to show that the evidence of the policeofficer is either unreliable, or at least unsafe to be acted upon in aparticular case. [Ref. State Govt. Of Nct Of Delhi vs Sunil Andpresumption that police records are untrustworthy. As proposition oflaw, the presumption should be the other way around, that official actsof the police have been performed regularly, which is wise principle ofpresumption and recognized even by the legislature. Hence, when apolice officer gives evidence in Court that certain article was recoveredby him on the strength of the statement made by the accused it is open tothe Court to believe the version to be correct if it is not otherwise shownto be unreliable. It is for the accused, through cross-examination ofwitnesses or any other material, to show that the evidence of the policeofficer is either unreliable, or at least unsafe to be acted upon in aparticular case. [Ref. State Govt. Of Nct Of Delhi vs Sunil And

Another, reported as (2001) 1 SCC 652]

31. In the present case, the appellant has not been able to demonstrate that,the record provided by the police officer, in relation to the present case,is unreliable or at least unsafe to be acted upon.the record provided by the police officer, in relation to the present case,is unreliable or at least unsafe to be acted upon.

32. In this behalf, it would be necessary to observe that the Hon’bleSupreme Court of India in the case ofSurender @ Babli v. State (NCT)of Delhi, reported as(2011) 15 SCC 546, overruled the decision of thisCourt in the case of Mukesh @ Girdi v. The State (GNCT) of Delhi,Crl.A.773/2003 decided on 02.11.2009; wherein the Hon’ble SupremeCourt of India set aside the decision in Mukesh @ Girdi, with theobservation that, the recovery of the weapon of the offence was inserious doubt; consequently, the judgment cited by the appellant,namely, Mukesh @ Girdi (supra) does not apply in the facts of thepresent case, as, we do not find any serious doubt on the recovery of theweapon.Supreme Court of India in the case ofSurender @ Babli v. State (NCT)of Delhi, reported as(2011) 15 SCC 546, overruled the decision of thisCourt in the case of Mukesh @ Girdi v. The State (GNCT) of Delhi,Crl.A.773/2003 decided on 02.11.2009; wherein the Hon’ble SupremeCourt of India set aside the decision in Mukesh @ Girdi, with theobservation that, the recovery of the weapon of the offence was inserious doubt; consequently, the judgment cited by the appellant,namely, Mukesh @ Girdi (supra) does not apply in the facts of thepresent case, as, we do not find any serious doubt on the recovery of theweapon.33. In light of the facts and circumstances of the present case, and in viewof above cited decisions, it is considered apposite to observe that thetestimony of the hostile witnesses is not rejected in toto.of above cited decisions, it is considered apposite to observe that thetestimony of the hostile witnesses is not rejected in toto.

34. Theappellantdidnotgiveanyplausibleexplanationtotheincriminating circumstances proved against him, nor did he examine anyincriminating circumstances proved against him, nor did he examine any

witness in his defence to establish his presence at some other specificplace at the time of occurrence. The conviction of the appellant isconsequently based upon fair appraisal of the evidence and nointerference is called for.

35. In view of the foregoing, we find ourselves in agreement with thefindings returned by the trial court, which in our considered view, do notwarrant any interference or modification. Therefore, the judgment andorder of sentence dated 09.11.2016 and 21.11.2016, respectively, areupheld and the present appeal is accordingly dismissed. However, thereshall be no order as to costs.findings returned by the trial court, which in our considered view, do notwarrant any interference or modification. Therefore, the judgment andorder of sentence dated 09.11.2016 and 21.11.2016, respectively, areupheld and the present appeal is accordingly dismissed. However, thereshall be no order as to costs.

36. The Trial Court Record be sent back forthwith.

37. copy of this judgment be communicated to the appellant through theSuperintendent, Tihar Jail and also be sent for updation of the records.Superintendent, Tihar Jail and also be sent for updation of the records.

SIDDHARTH MRIDUL, J.

ANU MALHOTRA, J.

SEPTEMBER 20, 2019dn/ad