Delhi District Court
State vs Shiva Chaudhary on 26 May, 2026
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-3, SOUTH-EAST
DISTRICT, SAKET COURTS, NEW DELHI
SC No. 11366/2023
CNR NO. DLSE01-007952-2023
State
Vs.
1) Shiva Chaudhary
S/o. Shri Rangpal Chaudhary,
R/o. B-37/3, Pul Prahladpur,
South Delhi - 110044
FIR No. 0094/2023
PS: Kalkaji
U/s: 302 IPC
R/w Section 34 IPC
Instituted on : 27.04.2023
Committed on : 18.07.2023
Reserved on : 20.04.2026
Decided on : 26.05.2026
JUDGMENT
1. The accused Shiva Chaudhary has been sent to face
trial with the allegations that on 30.01.2023, between 2.00 PM
to 2.15 PM, near Metro Bus Parking, little ahead of Gol
Chakkar, Police Booth, Kalkaji School, New Delhi, within the
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 1 of 57
jurisdiction of PS Kalkaji, he alongwith co-accused ‘AK’ and
‘AM’ [children in conflict with law (CCLs)], in furtherance of
their common intention, committed murder of Mohan S/o.
Rakesh.
2. Brief Facts of the Case:
2.1 On 30.01.2023, upon receipt of DD No. 44A regarding
an injured person admitted at Purnima Sethi Hospital, DD
Block, Kalkaji, Sub Inspector Ravi Kumar along with
Probationary Sub Inspector Sushil reached the said hospital. It
was revealed that the injured, namely Mohan @ Moniya S/o
Rakesh, has already been referred to AIIMS Trauma Centre
after being given first aid.
2.2 Thereafter, the police officials reached AIIMS Trauma
Centre where the injured was found admitted vide MLC No.
500356269/2023. As per the MLC, the injured was brought by
his father with alleged history of physical assault by knife,
stating that an unknown person had stabbed him on the chest
at about 2:00 PM near Kalkaji School, New Delhi. The
injured was declared unfit for statement and subsequently
succumbed to his injuries during treatment. Consequently, the
case was converted from Section 307 IPC to Section 302 IPC.
2.3 During the course of investigation, statements of
eyewitnesses namely Sumit and Kishan were recorded under
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 2 of 57
Section 161 CrPC, who stated that on 30.01.2023, after school
hours, they along with their friends Lucky and deceased
Mohan were returning home. At about 2:00-2:15 PM, near
Metro Bus Parking, Kalkaji, accused Shiva Chaudhary along
with co-accused ‘AK’ and ‘AM’ (CCLs) intercepted them and
started quarreling. During the altercation, accused Shiva
Chaudhary took a knife from co-accused ‘AK’ and inflicted a
stab injury on the chest of Mohan, due to which he fell down.
2.4 During investigation, accused Shiva Chaudhary was
apprehended and at his instance, co-accused ‘AK’ and ‘AM’
were also apprehended. The weapon of offence, i.e., a knife,
was recovered from the house of CCL ‘AK’. The same was
seized after preparing its sketch and sealing it as per
procedure.
2.5 The accused Shiva Chaudhary made a disclosure
statement admitting his involvement and stated that the
incident was pre-planned along with co-accused persons to
take revenge following a prior quarrel. The site plan of the
place of occurrence was prepared at the instance of witnesses.
The post-mortem report confirmed that the cause of death was
hemorrhagic shock due to a penetrating stab injury to the
chest which was sufficient to cause death in the ordinary
course of nature.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 3 of 57
2.6 During further investigation, exhibits were sent to FSL,
statements of witnesses were recorded, and relevant
documents including PCR form, MLC, post-mortem report,
and CDRs were collected.
3. The investigation culminated in the filing of a final
report/ chargesheet under section 173 CrPC against the
accused Shiva Chaudhary for the offences punishable u/s
302/201/120B/34 IPC.
4. Upon completion of investigation and after compliance
with the necessary legal formalities, the case was committed
to the Court of Sessions. Vide order dated 24.08.2023, charge
for offence punishable under Section 302 IPC read with
Section 34 IPC was framed against the accused Shiva
Chaudhary, to which he pleaded not guilty and claimed trial.
5. Record reveals that during course of trial, the accused
Shiva Chaudhary admitted following documents of
prosecution in terms of section 294 CrPC:-
i His MLC dated 01.02.2023, Ex. PA.
ii FSL result from Bio Division, Ex. AD-1.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 4 of 57
PROSECUTION EVIDENCE:
6. In support of its allegations, prosecution produced 21
witnesses. A summary of the witnesses produced and their
connection with the incident is as follows :
Witness Witness Name Purpose No. PW1 Mr. Rakesh Father of the deceased Mohan, who took his son to AIIMS Hospital. PW2, Mr. Kishan, They are the eye-witnesses of PW3, Mr. Sagar, the incident. PW4 & Mr. Sumit & PW5 Mr. Lucky PW6 Mr. Kores He took the injured / deceased Mohan to the hospital on the bike. PW7 Mr. Anurag Rathor He is the teacher of the school who made the call to accused for his practical examination. PW8 SI Ravi Kumar He is the first Investigating Officer (IO), who deposed about the investigation carried out by him. PW9 Ms. Manjeet Kaur, She deposed that on 23.01.2023 Senior Nursing injured was firstly admitted in Officer Poornima Sethi Hospital. PW10 Dr. Samar, Chief He had firstly examined the Administrative injured/deceased and thereafter Officer South referred him to AIIMS Hospital. SC No. 11366/2023 State v. Shiva Chaudhary Page No. 5 of 57 Zone, MCD, Mehrauli Urban Primary Health Center. PW11 Mr. Yatin Chawla He was the Nodal Officer, who proved the CAF, CDR in respect of mobile phone no. 892xxxx406 of accused Shiva Ex.PW11/P1 & Ex. PW11/P2. PW12 ACP Mukesh He visited the spot and prepared Kumar Jain the scaled site plan Ex. PW12/PI. PW13 Dr. Jhansi Lakshmi She had conducted the Mylapalli postmortem of the deceased vide PM report Ex. PW13/P1. As per said report, the cause of death was hemorrhage shock subsequent to penetrating injuries (stab) to the chest by sharp forced / impact. All injuries were reported as ante mortem in nature and injury no. 2 was fatal and sufficient to cause death in ordinary course of nature. She also proved her subsequent opinion Ex. PW13/P3, thereby opining that possibility to injury No. 2 sustained by deceased having been caused by weapon of offence can not be ruled out. PW14 HC Naresh, He visited the spot and clicked Photographer, photographs of the spot Ex. Mobile Crime PW14/A1 to PW14/A11. Team PW15 ASI Ravi Kumar He inspected the spot and SC No. 11366/2023 State v. Shiva Chaudhary Page No. 6 of 57
In-charge Mobile prepared the crime team report
Crime Team Ex. PW15/P1.
PW16 HC Sudhir Kumar, He proved the PCR form Ex.
CPCR,Nodal PW16/P1, regarding the incident
Officer received vide Event ID No.
6486976 dated 30.01.2023.
PW17 Mr. Pradeep He deposed that on 30.01.2023
Kumar, TGT, accused did not attend school
Hindi and his practical examination
was scheduled, but after being
contacted accused appeared in
History Practical examination
after recess. He proved the
attendance record, reply of
Principal and School as Ex.
PW17/P1 to PW17/P4.
PW18 Ct. Suman Prakash On 16.02.2023, he collected
three sealed exhibits with
sample seal and deposited the
same at FSL vide RC No.
28/21/23 Mark 18/A, obtained
acknowledgment Ex. PW18/P1.
PW19 Ct. Satyapal Singh He is witness to the
investigation.
PW20 Inspector Yogesh He is one of the Investigating
Kumar Officers who got conducted
inquest proceedings and post-
mortem; prepared death report
Ex.PW20/A; recorded
statements of the relatives for
identification of dead body;
seized sealed exhibits vide
memo Ex. PW20/C and filed
supplementary charge-sheet
including DNA report and
subsequent medical opinion
regarding weapon of offence.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 7 of 57
PW21 Inspector Mukesh He is the main Investigating
Baliyan Officer of the case and deposed
about the investigation carried
out by him and about filing of
the charge sheet.
7. MATERIAL EVIDENCE ON RECORD: The testimony
of material witnesses is being discussed hereinunder, whereas
brief of remaining testimonies has already been given in the
preceding paragraph.
8. PW1 Mr. Rajesh is the father of the deceased and his
testimony reads as under:
“Deceased Mohan was my son. On 30.01.2023, I was
present at my house. In between 02.30 PM -2.45 PM, one
Sagar, resident of our colony telephoned me that my son
Mohan was got admitted at Purnima sethi Hospital after
sustaining injuries. I immediately went their on my bike.
When I reach there, my son was there in the hospital
however, the attending doctor was contemplating to refer
him to AIIMS Trauma Center. Finally he was referred to
AIIMS Trauma Center. An ambulance was provided by the
said hospital and I accompanied my son to the AIIMS
Trauma Center.
During the said journey my son was bleeding
from his chest and he was also conscious. When I asked
what happened to him he told me “Aman Kohli, Shiva
chaudhory and Abhay Meena en teeno ne mere dost ke saath
jhagra kiya hai and Shiva Chaudhary ne abhay meena seSC No. 11366/2023 State v. Shiva Chaudhary Page No. 8 of 57
chaku leke mere chaati par maar diya hai. wo mujhse paani
maang rha tha ke papa paani pila do. Maine kaha beta sab
thik ho jaayega, chalo hospital chalete hai, wahi panni pila
dunga.” maine usse mana kar diya ke jyada mat bolo.”
After reaching the AIIMS Trauma Center I got him
admitted there.
My son succumbed injuries after 2-3 hours during
his operation. Next day the postmortem of the body of my
son got conducted. I identified the dead body of my son
before his postmortem at the said hospital. My statement Ex.
PW1/A was recorded in this regard which bears my
signature at point A.
My brother in law (behnoi) Sh. Vinod Kumar was
also present with me at that time.
After postmortem dead body was handed over to me
and my brother in law vide handing over memo Ex. PW1/B
which bears my signature at point A. I had also handed over
the copy of my aadhar card to the police. Same is Ex.
PW1/C which bears my signature at point A. I did not know
any of the persons named by my son as stated above.
(emphasis supplied)
9. PW2 Mr. Kishan, is one of the eye-witnesses examined
by prosecution and his testimony reads as under:
“On 28.01.2023, I was present at my school S.
Co-Ed, Kalkji No.III, New Delhi. At that time, I wasSC No. 11366/2023 State v. Shiva Chaudhary Page No. 9 of 57
studying in class 12th. At about, 02.00p.m. I was going home
with my friends namely Sumit after dispersal from school.
At about 02.15p.m. Sumit received a telephonic call from
Lucky and told that there was quarrel and he was being
beaten by some boys from school situated in Chirag
Enclave. Both of us went to bus stand Govindpuri, Kalkaji,
New Delhi. At that time Lucky was being beaten by more
than 10 boys, out of whom I only knew CCL AK When I
intervened, said CCL AK hit me with his belt on my
forehead (witness points towards his right eyebrows). I
started bleeding. Sumit took me to Chandiwala hospital
where one lady told me that stitches would have to be given
to me and it would cost around Rs.3000/-. I did not have the
money so I asked that my wound may be bandaged.
Bandaged was applied and then I returned to my home.
After reaching my home, I called my father on his
mobile phone, and narrated the incident to him. Within 30-
40 minutes, my father arrived at my home and took me to a
Doctor whose clinic is situated in my colony, but I do not
remember the Doctor’s name. In the same night, my father
told me not to go to school as he was afraid that issue might
escalate further. I told my father that I have to take my
painting examination scheduled for the next day and
therefore, I have to visit the school.
On 30.01.2023, I went to the school. After taking
the exam, I came out of the school along with my
classmates namely Sumit, Lucky and Mohan and some
other boys of the school. All of us were walking towards
our homes. After a while when we reached near the gate ofSC No. 11366/2023 State v. Shiva Chaudhary Page No. 10 of 57
the park situated near Police booth, we were encircled by
CCL AK and his friends. A quarrel ensued after some
arguments. One of the friends of CCL AK namely CCL AM
was carrying a knife in his hand. He handed over the said
knife to a healthy boy namely Shiva. I left the spot
immediately and reached my home. Later on, I came to
know that Mohan was stabbed in his heart by Shiva, who
lost his life. I learnt this latter fact when I was taken to
Police Station by a police man in civil clothes on
30.01.2023 in the night at around 10.00p.m. I was
interrogated at the PS. I can identify the accused Shiva
(witness has correctly identified the accused present in the
court).
On 31.01.2023, accused CCL AK was arrested from
outside my school. Accused Shiva was also arrested at
around 02.00p.m. on the same day from outside my school
in my as well as Sumit’s presence. Arrest memo and
personal search memo of Shiva is exhibited as Ex.PW-2/1
and Ex.PW-2/2 bearing my signature at point A.
At this stage, Ld. Additional PP for state wants to cross
examine the witness as witness is not deposing all the facts.
Heard, allowed.
XXX by Sh.Prayag Dutt Pandey, Ld. Additional
PP for state.
It is wrong to suggest that accused Shiva
Chaudhary gave knife blow to Mohan in my presence due to
which he died.
(emphasis supplied)
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 11 of 57
10. PW3 Sagar is the other material witness examined by
State and his testimony reads as under:
“I am residing at the aforesaid address. I am
running a shop a Mutton Shop at Okhla Phase II.
On 30.01.2023, at about 2/2:30 PM. I along with
my friend Sohit on motorcycle were going to Purnima
Hospital to take my mother. She was already there as my
brother has took her there. When I reached near police booth
I found that the children were running here and there,
meanwhile one boy namely Rahul came and sat on my
motorcycle. As we were going towards Purnima Hospital,
near Golchakkar I saw one boy namely Mohan who is also
resident of our colony was lying there. The said boy was in
serious condition and I picked him up on my bike with the
help of one school boy who was also present there and took
him to Purnima hospital on bike. When I reached at
Purnima hospital I called Bunty Bhaiya who is friend of
father of Mohan took number of father of Mohan from him.
I called to father of Mohan and informed him about the
condition of Mohan and asked him to come at hospital and
after sometime father of Mohan reached at hospital. The
condition of Mohan was not well so the doctors in Purnima
hospital referred him to AIIMS Trauma Center and father of
Mohan took him to AIIMS Hospital in ambulance.
Thereafter, I went to my home. At that time, I was
having mobile phone of my brother and I called father of
Mohan through that mobile. The number of said mobile
phone is 8448722735. I had pointed out towards the placeSC No. 11366/2023 State v. Shiva Chaudhary Page No. 12 of 57
at which the Mohan was lying. Police prepared the site plan
of the same. The site plan is now Ex. PW3/A. The signature
at point A on Ex. PW3/A does not belong to me.
(emphasis supplied)
11. PW4 Sumit is also a material witness and his testimony
reads as under:
“I am residing at the above said address. In the
year 2023 I was studying in class XII in Government
School No.2, Kalkaji.
On 28.01.2023, I along with my friend Kishan
were getting to our house after the school. Meanwhile, one
of my class mate namely Lucky called me and told me that
he was having quarrel with Aman Kohli at Govindpuri, Bus
stop. I along with Kishan went there and found that a
quarrel was going on. I and Kishan tried to rescue Lucky,
and then Aman Kohli had hit Kishan with belt on his eye
and he sustained injury and blood started oozing out from
his eyes. I had seen Aman Kohli on bus stop as he used to
go from there. Thereafter, we went to our houses.
On 30.01.2023 when I alongwith Kishan, Lucky
and Mohan were returning from our school to our houses,
when we reached near police booth golchakkar, Aman
Kohli, Shiva Chaudhary, Abhay Meena came and started
quarreling with us. Abhay Meean gave the knife to Shiva
Chaudhary and Shiva Chaudhary stabbed Mohan on his
chest. Thereafter, we became scared and ran away from
there.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 13 of 57
On 31.01.2023 police called me for inquiry and
took me and Kishan to the school of Excellence, Kalkaji. I
identified Shiva Chaudhary and police arrested accused
Shiva Chaudhary vide memo already Ex. PW2/A which
bears my signature at point B and has also conducted his
personal search vide memo Ex. PW2/B which bears my
signature at point B and also recorded disclosure statement
vide memo Ex. PW2/C which bears my signature at point
B.
Accused Shiva Chaudhary present in court today
(Correctly identified by the witness).
At this stage, Ld Addl. PP seeks permission from
the court to ask leading questions from the witness. Heard.
Allowed.
It is correct that I know Aman Kohli as he studied
in Kautaliya School, Chirag Enclave. It is correct that
Aman Kohli is a quarrelsome boy and he used to have
quarrel with one boy or the other. It is correct that I know
Aman Kohli, Shiva Chaudhary and Abhay Meena as they
also used to go from the side of Govind Puri Metro station,
bus stop and when they saw us they started threatening us
and started quarreling and because of which quarrel
aggravated. It is correct that later on I came to know that
Mohan had expired.”
(emphasis supplied)
12. PW5 Lukcy is also an eye-witness and his testimony
reads as under:
“I am residing at the above said address. In the
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 14 of 57
year 2023 I was studying in class XII in Government
School No.2, Kalkaji.
On 28.01.2023 I was returning from school to go
to my home. When I reached near Govind Puri metro
station, bus stop, meanwhile Aman Kohli came and started
quarreling with me. I immediately called my classmate
Sumit and told him about the same. Thereafter, Sumit and
Kishan came to rescue me and they tried to rescue me and
meanwhile Aman Kohli hit Kishan with belt buckle on his
eye. His eye got injured and blood started oozing out from
his eye. Thereafter, we all went to our houses.
On 30.01.2023 after the school when we were
returning to our houses at about 2:10 PM-2:15 PM, when I
alongwith Sumit, Kishan and Mohan reached near Police
Booth golchakkar, Aman Kohli and his associate started
beating us, the quarrel aggravated and Shiva Chaudhary
stabbed Mohan on his chest. Thereafter, we all started
running from there and reached at our houses.
On 31.01.2023 police called me and inquired me
about the incident. I told him about the incident.
Accused Shiva Chaudhary is not present in court
today.
At this stage, Ld. Addl. PP seeks to cross-examine
the witness as he is resiling from his earlier statement
recorded u/s 161 Cr.P.C. Heard. Allowed.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 15 of 57
XXXXX by Sh. Syed Ubaid Mansoor, Ld. Addl.
(subs) PP for State.
At this stage, Ld. APP pointed towards accused
Shiva Chaudhary and asked if he is accused Shiva
Chaudhary who had stabbed Mohan with knife in your
presence.
After seeing accused Shiva Chaudhary the witness
stated that he cannot identify accused Shiva Chaudhary.
It is wrong to suggest that I am intentionally not
identifying the accused I have been won over by the
accused Shiva Chaudhary. It is wrong to suggest that
accused Shiva Chaudhary was studying in Kautaliya
School, Chirag Delhi and he was well known to me as he
used to go his house on the same way on which I used to
go. It is correct that Aman Kohli is a quarrelsome boy and
he used to have quarrel with one boy or the other. It is
correct that I know Aman Kohli, Shiva Chaudhary and
Abhay Meena as they also used to go from the side of
Govind Puri Metro station, bus stop and when they saw us
they started threatening us and started quarreling and
because of which quarrel aggravated.
It is correct that later on I came to know that
Mohan had expired. It is correct that Shiva Chaudhary
along with his associates had quarreled with me and my
aforesaid friends. It is correct that accused Shiva
Chaudhary is studying is class XII in the Schoold of
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 16 of 57
Excellence, Kalkaji and Abhay Meena was studying in
Lajpat Nagar, Co-Ed. Scool in class XII. It is correct that
Shiva Chaudhary had taken the knife from Abhay Meena
and stabbed in the chest of deceased Mohan and thereafter,
public persons started running here and there and later on I
came to know that Mohan had expired.
It is wrong to suggest that police had inquired me
about the case and took me and Sumit to School of
Excellence, Kalkaji where accused Shiva Chaudhary was
standing and I idenfied him and told that on 30.01.2023
Abhay Meena and Aman Kohli along with accused Shiva
Chaudhary had quarreled with me and my friends and
Shiva Chaudhary stabbed Mohan with knife on his chest. It
is correct that police had arrested the accused Shiva
Chaudhary vide memo already Ex. PW2/A. Police has also
recorded the disclosure statement of accused Shiva
Chaudhary vide memo already Ex. PW2/C. It is wrong to
suggest that I am intentionally not disclosing all true facts
of the present case as I have been won over by the accused.
It is wrong to suggest that I am deposing falsely at the
instance of accused.
(emphasis supplied)
13. PW-6 Mr. Kores is a material witness who deposed that
on the date of incident, he reached near the place of
occurrence and found the injured Mohan lying in a grievous
condition. He took the injured to the hospital on his
motorcycle. He did not witness the incident of assault and did
not depose anything regarding the identity of the assailant.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 17 of 57
14. PW-8 SI Ravi Kumar, the first Investigating Officer,
deposed that on receipt of DD No. 44A, he along with PSI
Sushil reached Purnima Sethi Hospital where it was revealed
that the injured Mohan had been referred to AIIMS Trauma
Centre. Thereafter, he reached AIIMS where the injured was
found admitted vide MLC.
14.1 He further deposed that as per the MLC, the injured had
sustained stab injuries. The injured was declared unfit for
statement and subsequently succumbed to injuries, whereupon
the case was converted from Section 307 IPC to Section 302
IPC. He proved the steps taken by him during the initial
investigation including recording of statements of witnesses,
preparation of rukka, and inspection of the spot.
15. PW21 Inspector Mukesh Baliyan is the main IO of the
case and his testimony reads as under:
“On 31.01.2023 I was posted as Inspector at PS
Kalkaji. On that day, the present case was assigned to me
for further investigation. On the same day, I got the
postmortem of the dead body of the deceased conducted
through Inspector Yogesh.
During examination of the eyewitnesses, they
disclosed the name of the present case and two CCLs
involved in the present case. On the same day, I arrested
the accused Shiva Chaudhary from outside the School of
Excellence, Kalkaji, on the identification of eyewitnessesSC No. 11366/2023 State v. Shiva Chaudhary Page No. 18 of 57
namely Sumit and Kishan in the presence of HC Satpal and
SI Narender Bhatti vide arrest memo Ex. PW2/A, bearing
my signature at point C and signature of said witnesses at
point A and B.Personal search of the said accused was conducted
vide memo already Ex. PW2/B, bearing my signature at
point C and signature of said witnesses at point A and B.
Upon cursory search of the accused, his purple colour
mobile phone of Oppo make bearing IMEI number as
mentioned in personal search memo was recovered from his
personal search.
I interrogated accused Shiva Chaudhary and
recorded his disclosure statement already Ex. PW2/C,
bearing my signature at point C and signature of said
witnesses at point A and B and signature of accused at
point D.Pursuant to his disclosure statement at point D to
D that he can get CCL involved in the present case
apprehended, accused Shiva Chaudhary got apprehended
CCL ‘AK’ and also pointed out the house of other CCL
‘AKM’ vide pointing out memo already Ex. PW19/A,
bearing my signature at point A and signature of accused at
point B.
Accused pointed out the place of occurrence vide
pointing out memo Ex. PW21/A, bearing my signature at
point A and signature of accused at point B.I had also examined three eyewitnesses in the
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 19 of 57
present case and recorded their respective statements u/s.
161 Cr.PC.
Next day, I apprehended CCL ‘AKM’ from his
rented accommodation and the weapon of the offence used
in the present case was recovered from his possession.
I had also collected crime team report already Ex.
PW15/P1. The photographs of the scene of crime already
Ex. PW14/A1 to A14. I had also collected the PCR form of
the relevant time and placed the same on record. Copy of
the same is now Ex. PW21/B. (Legible copy of the same
has also been produced by the witness and it is marked as
Ex. PW16/P1 alongwith certificate u/s. 63 of BSA already
Ex. PW16/P2).
During the course of investigation, pursuant to my
notice u/s. 91 Cr.PC Ex. PW21/C, I had also obtained the
documents already Ex. PW10/P1 and Ex. PW9/DA from
Poornima Sethi Hospital regarding initial treatment given to
the injured / deceased.
Pursuant to my notice u/s. 91 Cr.PC Ex. PW21/D,
bearing my signature at point A, the principal of School of
Excellence had submitted the reply already Ex. PW17/P2 to
the effect that accused Shiva Chaudhary did not appear in
the class 12th CBSE History Practical scheduled to be held
on 30.01.2023 nor he came to the school in the morning of
the same day. I had also obtained the attendance sheet
already Ex. PW17/P3 of the accused from the said school.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 20 of 57
I had also obtained the CDR already Ex. PW11/P2
pertaining to mobile number on the basis of IMEI number
of the mobile phone recovered from the personal search of
the accused and his location was found near the place of the
occurrence. The relevant entries in this regard have been
highlighted by me on page no. 22 of the said CDRs.
I had also got sent the exhibits pertains to the
present case to FSL for their examination through Ct.
Suman Prakash vide road certificate already Ex. PW18/A
and acknowledgment already Ex. PW18/P1. The
forwarding letter sent alongwith the exhibits is now Ex.
PW21/C, bearing my signature at points A.I had also collected the PM report and the MLC of
the deceased. I had recorded the statement of the witnesses,
who had been associated with me during the course of
investigation, prepared the charge sheet and submitted the
same in the Court.
I identity the accused Shiva Chaudhary, present in
the Court. (Correctly identified by the witness).”
STATEMENT OF ACCUSED U/S 313 CrPC:
16. Examined under section 313 of CrPC, the accused
either pleaded ignorance about the incriminating evidence or
denied the same as incorrect. He claimed to be falsely
implicated.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 21 of 57
17. Accused Shiva Chaudhary examined one witness i.e.
DW1 Aakash Rai in his defence whose testimony reads as
under :
“I have studied upto 10th standard. I have been helping my
father in the business of Wifi for the last 5-6 years.
Accused Shiva Chaudhary is my childhood friend. He is
innocent and has been falsely implicated in the present case.
While I was passing through the place of incident, I saw 40-
50 people gathered there including CCL ‘ARM’, who had
stabbed deceased Mohan. There had been a quarrel between
deceased Mohan and CCL ‘ARM’ as CCL ‘ARM’ used to
like the girlfriend of deceased Mohan. Rest of the things I do
not know.”
18. On conclusion of defence evidence, final arguments
were advanced by parties.
19. Ld. Addl. Public Prosector for the State argued that the
prosecution has successfully established its case beyond
reasonable doubt. It was contended that PW-4 Sumit, who is
an eye-witness to the incident, has categorically deposed that
accused Shiva Chaudhary stabbed the deceased Mohan on his
chest after taking the knife from co-accused. It was further
argued that the said testimony is natural, trustworthy and has
remained unshaken in material particulars.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 22 of 57
19.1 It was further argued that the testimony of PW-1 (father
of the deceased) assumes great significance as the deceased
made a statement to him while being taken to the hospital,
clearly naming the accused Shiva Chaudhary as the person
who inflicted the knife injury. Ld. Addl. PP submitted that the
said statement qualifies as a dying declaration and is
admissible under Section 32 of the Indian Evidence Act and
can form the sole basis of conviction.
19.2 It was also contended that the medical evidence in the
form of post-mortem report (PW-13) fully corroborates the
ocular testimony, as the cause of death has been opined to be
hemorrhagic shock due to penetrating stab injury to the chest,
which is consistent with the version of eye-witnesses.
19.3 Ld. Addl. PP further submitted that the presence of
accused at the spot stands established from the testimonies of
eye-witnesses as well as CDR evidence, and the recovery of
weapon of offence pursuant to disclosure statement further
strengthens the prosecution case.
19.4 It was lastly argued that minor contradictions or
discrepancies in the testimonies of witnesses are bound to
occur due to passage of time and do not affect the core of the
prosecution case. It was thus prayed that accused be convicted
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 23 of 57
for offence punishable under Section 302 IPC read with
Section 34 IPC.
20. Per contra, Ld. Counsel for the accused vehemently
argued that the prosecution has failed to prove its case beyond
reasonable doubt and the accused has been falsely implicated.
20.1 It was contended that the eye-witnesses examined by
the prosecution are not reliable. Attention of the Court was
drawn to the testimony of PW-2 Kishan, who did not support
the prosecution case in material particulars and specifically
denied that accused Shiva Chaudhary gave knife blow to the
deceased in his presence. It was argued that this creates
serious doubt regarding the prosecution version.
20.2 It was further argued that PW-5 Lucky also failed to
identify the accused in Court, which further weakens the case
of prosecution. The defence submitted that when key eye-
witnesses have not supported the prosecution case fully,
reliance on solitary testimony of PW-4 would be unsafe.
20.3 Ld. Defence Counsel also contended that the alleged
dying declaration is not reliable as it was not recorded by any
Magistrate or doctor and there is no independent
corroboration to the same. It was argued that such oral dying
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 24 of 57
declaration is a weak piece of evidence. It was further argued
that as per cross-examination of PW-9, the concerned Nursing
Officer from Poornima Sethi Hospital (where deceased was
firstly taken prior to making of alleged dying declaration to
his father), the deceased was not responding to any question
till he remained in the said hospital meaning thereby he was
not medically fit to make any dying declaration.
20.4 It was further submitted that no independent public
witness has been examined despite the incident taking place in
a public area, thereby casting doubt on the fairness of
investigation. It was argued that no efforts were made to
collect CCTV footage, despite the place of occurrence being a
public area, which reflects a serious lapse in the investigation.
Further, it was contended that the viscera of the victim was
not preserved or seized, constituting another significant
deficiency. It was submitted that, as per the prosecution’s own
case, PW-3 Sagar had taken the victim to the hospital on his
motorcycle; however, there is nothing on record to indicate
that his clothes were seized during the investigation, even
though they would likely have contained bloodstains of the
victim.
20.5 Defence also relied upon testimony of DW-1 to argue
that some other person (CCL) had inflicted the injury, thereby
raising a plausible alternative version. It was thus prayed that
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 25 of 57
benefit of doubt be given to the accused.
21. Heard. Record perused.
22. In a criminal trial, the onus remains on the prosecution
to prove the guilt of accused beyond all reasonable doubts and
benefit of doubt, if any, must necessarily go in favour of the
accused. It is for the prosecution to travel the entire distance
from may have to must have. If the prosecution appears to be
improbable or lacks credibility the benefit of doubt
necessarily has to go to the accused.
23. Before proceeding further, I would set-up the position of
law on various aspects that arise in the matter.
24. In Lallu Manjhi v State of Jharkhand, (2003) 2 SCC 401,
it was held as under:
10. The law of evidence does not require any
particular number of witnesses to be examined
in proof of a given fact. However, faced with
the testimony of a single witness, the court
may classify the oral testimony into three
categories, namely, (i) wholly reliable, (ii)
wholly unreliable, and (iii) neither wholly
reliable nor wholly unreliable. In the first two
categories there may be no difficulty in
accepting or discarding the testimony of the
single witness. The difficulty arises in the third
category of cases. The court has to be
circumspect and has to look for corroboration
in material particulars by reliable testimony,
direct or circumstantial, before acting upon the
testimony of a single witness. (See: Vadivelu
Thevar v. State of Madras [AIR 1957 SC 614 :
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 26 of 57
1957 Cri LJ 1000].)”
25. In Amar Singh v State NCT Delhi, 2020 SCC OnLine
SC 826, it was observed as under:
“16. Thus the finding of guilt of the two
accused appellants recorded by the two Courts
below is based on sole testimony of eye
witness PW-1. As a general rule the Court can
and may act on the testimony of single eye
witness provided he is wholly reliable. There is
no legal impediment in convicting a person on
the sole testimony of a single witness. That is
the logic of Section 134 of the Evidence Act,
1872. But if there are doubts about the
testimony Courts will insist on corroboration.
It is not the number, the quantity but quality
that is material. The time honoured principle is
that evidence has to be weighed and not
counted. On this principle stands the edifice of
Section 134 of the Evidence Act. The test is
whether the evidence has a ring of truth, is
cogent, credible and trustworthy or otherwise.
29. In the facts and circumstances of the case
this was serious lapse on the part of the
investigating officer. Though normally minor
lapses on the part of the investigating officer
should not come in the way of accepting eye
witness account, if otherwise reliable. But in
the circumstances of the case at hands where
the conduct of sole eye witness is unnatural
and there are various other surrounding
circumstances which make his presence at the
site of incident doubtful, such a lapse on the
part of the investigating officer assumed
significance and is not liable to ignored.”
26. In Santosh Prasad @ Santosh Kumar v State of Bihar,
(2020) 3 SCC 443, it was observed as under:
“5.4.2. In Rai Sandeep [Rai Sandeep v.
State (NCT of Delhi), (2012) 8 SCC 21 :
(2012) 3 SCC (Cri) 750], this Court had an
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 27 of 57
occasion to consider who can be said to be a
“sterling witness”. In para 22, it is observed
and held as under:
22. In our considered opinion, the “sterling
witness” should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version
of such witness should be in a position to
accept it for its face value without any
hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the case
of the prosecution qua the accused. There
should not be any prevarication in the version
of such a witness. The witness should be in a
position to withstand the cross-examination of
any length and howsoever strenuous it may be
and under no circumstance should give room
for any doubt as to the factum of the
occurrence, the persons involved, as well as
the sequence of it. Such a version should have
co-relation with each and every one of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence and
the expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not
be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him.
Only if the version of such a witness
qualifies the above test as well as all other
such similar tests to be applied, can it be held
that such a witness can be called as a “sterling
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 28 of 57
witness” whose version can be accepted by the
court without any corroboration and based on
which the guilty can be punished. To be more
precise, the version of the said witness on the
core spectrum of the crime should remain
intact while all other attendant materials,
namely, oral, documentary and material
objects should match the said version in
material particulars in order to enable the court
trying the offence to rely on the core version to
sieve the other supporting materials for
holding the offender guilty of the charge
alleged.”
27. In State of Maharashtra v Dinesh, (2018) 15 SCC 161,
it was observed as under :
“8. In Joseph v. State of Kerala [Joseph v.
State of Kerala, (2003) 1 SCC 465 : 2003 SCC
(Cri) 356], this Court has observed that where
there is a sole witness, his evidence has to be
accepted with an amount of caution and after
testing it on the touchstone of other material on
record. In State of Haryana v. Inder Singh
[State of Haryana v. Inder Singh, (2002) 9
SCC 537 : 2003 SCC (Cri) 1239], this Court
has laid down that the testimony of a sole
witness must be confidence inspiring and
beyond suspicion, thus, leaving no doubt in the
mind of the Court. In Ramnaresh v. State of
Chhattisgarh [Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257 : (2012) 2
SCC (Cri) 382], this Court, after taking note of
the aforementioned two judgments, observed
that “the principles stated in these judgments
are indisputable. None of these judgments say
that the testimony of the sole eyewitness
cannot be relied upon or conviction of an
accused cannot be based upon the statement of
the sole eyewitness to the crime. All that is
needed is that the statement of the sole
eyewitness should be reliable, should not leave
any doubt in the mind of the Court and has to
be corroborated by other evidence produced by
the prosecution in relation to commission ofSC No. 11366/2023 State v. Shiva Chaudhary Page No. 29 of 57
the crime and involvement of the accused in
committing such a crime”. It is well settled
that it is the quality of the evidence and not the
quantity of the evidence which is required to
be judged by the court to place credence on the
statement (Seeman v. State [Seeman v. State,
(2005) 11 SCC 142 : 2005 SCC (Cri) 1893]).
“11. Thus, in the foregoing circumstances,
especially taking note of the unnatural manner
in which PW 7 kept quiet till one-and-half
months after the incident, that too in the midst
of thickly populated vicinity, it is not safe to
convict an accused solely relying on her
evidence. Thus, we find no firm ground in this
appeal or reason to believe the testimony of
alleged eyewitness PW 7 calling for our
interference in the judgment passed by the
High Court. In our view, the High Court has
rightly classified and considered the evidence
of prosecution witnesses and after properly
analysing the facts and circumstances
rendered a reasoned judgment, disbelieving the
prosecution story. We, therefore, affirm the
view taken by the High Court and dismiss the
appeal of the State.”
28. Next, in Narayan Chetanram Chaudhary v. State of
Maharashtra [(2000) 8 SCC 457 : 2000 SCC (Cri) 1546 : AIR
2000 SC 3352], it was observed as under:-
“42. Only such omissions which amount to
contradiction in material particulars can be
used to discredit the testimony of the witness.
The omission in the police statement by itself
would not necessarily render the testimony of
witness unreliable. When the version given by
the witness in the court is different in material
particulars from that disclosed in his earlier
statements, the case of the prosecution
becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false and the sense ofSC No. 11366/2023 State v. Shiva Chaudhary Page No. 30 of 57
observation differ from person to person.”
29. Further, in Allauddin Khan v State of West Bengal, 2015
SCC OnLine Cal 3033, it was held as under:
“15. It is the settled proposition of law that
there (sic, is) bound to be some discrepancies
between the depositions of different witnesses
when they speak on details, and unless the
contradictions are of a material dimension, the
same should not be used to jettison the
evidence in its entirety. But discrepancy has to
be distinguished from contradiction. While
minor discrepancy or variance in evidence will
not make the prosecution’s case doubtful,
contradiction in the statement of witness is
fatal for the case. The above principle of law
has been laid down in the matter of State of
H.P. v. Lekh Raj, reported in (2000) 1 SCC
247 and the relevant portions of the above
decision is quoted below:-
7. In support of the impugned judgment
the learned counsel appearing for the
respondents vainly attempted to point out
some discrepancies in the statement of the
prosecutrix and other witnesses for
discrediting the prosecution version.
Discrepancy has to be distinguished from
contradiction. Whereas contradiction in
the statement of the witness is fatal for the
case, minor discrepancy or variance in
evidence will not make the prosecution’s
case doubtful. The normal course of the
human conduct would be that while
narrating a particular incident there may
occur minor discrepancies, such
discrepancies in law may render credential
to the depositions. Parrot-like statements
are disfavoured by the courts. In order to
ascertain as to whether the discrepancy
pointed out was minor or not or the same
amounted to contradiction, regard is
required to be had to the circumstances of
the case by keeping in view the social
status of the witnesses and environment in
which such witness was making the
statement. This Court in Ousu Varghese v.
State of Kerala held that minor variations
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 31 of 57
in the accounts of the witnesses are often
the hallmark of the truth of their
testimony. In Jagadish v. State of M.P.
this Court held that when the
discrepancies were comparatively of a
minor character and did not go to the root
of the prosecution story, they need not be
given undue importance. Mere congruity
or consistency is not the sole test of truth
in the depositions. This Court again in
State of Rajasthan v. Kalki held that in the
depositions of witnesses there are always
normal discrepancies, however, honest
and truthful they may be. Such
discrepancies are due to normal errors of
observation, normal errors of memory due
to lapse of time, due to mental disposition
such as shock and horror at the time of
occurrence, and the like. Material
discrepancies are those which are not
normal and not expected of a normal
person. Whether the discrepancy is minor
or the same is contradiction fatal for the
case is a matter of fact which is special to
each case.”
30. Further, in State of UP v Nandu Vishwakarma
& Ors, (2009) 14 SCC 501, it was held as under:
“23. It is a settled principle of law that
when on the basis of the evidence on record
two views could be taken–one in favour of
the accused and the other against the accused
–the one favouring the accused should always
be accepted. ”
31. In light of these guiding principles, I shall now give my
findings in the factual matrix of present case.
32. The case of the prosecution primarily rests upon the
testimonies of the eye-witnesses, the alleged dying declaration
of the deceased as deposed by PW-1, medical evidence, and
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 32 of 57
the investigation carried out by the police officials. It is
therefore necessary to examine whether the said evidence
inspires confidence and is sufficient to bring home the guilt of
the accused beyond reasonable doubt.
33. At the outset, the homicidal nature of death of deceased
Mohan stands proved from the testimony of PW-13 (Doctor),
who conducted the post-mortem and opined that the death was
caused due to hemorrhagic shock consequent to stab injury to
the chest, and injury no. 2 which was sufficient to cause death
in ordinary course of nature. This aspect has not been
seriously disputed by the defence.
34. The prosecution case, at its core, rests upon direct ocular
evidence, the most significant of which is the testimony of
PW-4 Sumit, who has been projected as the star eye-witness
to the occurrence. It is a settled principle of criminal
jurisprudence that where the prosecution relies upon ocular
testimony, and such testimony is found to be credible, cogent
and trustworthy, the same constitutes the best form of
evidence and can, by itself, be sufficient to sustain a
conviction. The law does not mandate that such testimony
must, in all cases, be corroborated by independent evidence.
Rather, the test is one of intrinsic reliability and probability. If
the witness inspires confidence and his version is consistent
with the overall circumstances of the case, the Court is
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 33 of 57
entitled to act upon such testimony even in the absence of
independent corroboration.
35. At the same time, it is equally well settled that ocular
evidence must be subjected to careful judicial scrutiny,
particularly in cases involving serious offences such as
murder. The Court must examine whether the witness is
natural, whether his presence at the scene is established,
whether his testimony is consistent inter-se and with other
evidence on record, and whether there are any inherent
improbabilities which may cast doubt on his version.
36. In the present case, PW-4 Sumit has given a detailed,
coherent and consistent account of the incident. He has
categorically deposed that on the date of occurrence, when he
along with the deceased Mohan and other companions was
returning from school, the accused along with his associates
intercepted them and initiated a quarrel. He has further stated
that co-accused “AM” handed over a knife to the present
accused Shiva Chaudhary, who thereafter inflicted a stab
injury on the chest of the deceased.
37. The testimony of PW-4 is significant for multiple
reasons. Firstly, it assigns a specific and unambiguous role to
the accused, thereby clearly establishing his participation in
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 34 of 57
the crime. Secondly, it explains the sequence of events
leading to the assault, including the handing over of the
weapon, which is an important circumstance indicating
preparation and coordination. Thirdly, the witness has also
deposed about the prior incident dated 28.01.2023, wherein a
quarrel had taken place between the parties. This aspect
provides a background and motive for the occurrence and
lends further credibility to his version.
38. Importantly, the deposition of PW-4 is free from
material contradictions. No inconsistency of such nature has
been brought out in his cross-examination which would shake
the core of his testimony. His narration appears natural,
spontaneous and in consonance with the surrounding
circumstances.
39. The defence has sought to challenge the credibility of
PW-4 on the ground that he is a friend of the deceased and,
therefore, an interested witness. This contention, though
superficially attractive, does not hold much substance in the
eyes of law. It is a well-established principle that the evidence
of a related or interested witness cannot be discarded merely
on the ground of such relationship. On the contrary, it is often
observed that a person who is closely associated with the
victim is less likely to shield the real culprit and falsely
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 35 of 57
implicate an innocent person.
40. What is required in such cases is not rejection of
testimony, but heightened scrutiny. The Court must examine
whether the witness has any motive to falsely implicate the
accused, whether his testimony is inherently reliable, and
whether it stands the test of cross-examination.
41. In the present case, no material has been brought on
record to suggest that PW-4 had any animus against the
accused or any reason to falsely implicate him. There is no
suggestion of prior enmity between PW-4 and the accused
which could lead to false implication. Furthermore, despite
extensive cross-examination, nothing substantial has emerged
to discredit his testimony.
42. Thus, upon careful scrutiny, this Court finds that the
testimony of PW-4 is trustworthy, reliable and inspires
confidence, and the mere fact that he was acquainted with the
deceased does not render his evidence suspect.
43. Further, PW-2 Kishan was also examined by the
prosecution as one of the eye-witnesses to the occurrence.
However, during his deposition before the Court, he did not
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 36 of 57
fully support the prosecution case and was accordingly
declared hostile. A careful reading of his testimony reveals
that while he has resiled from a part of his earlier statement,
particularly with regard to witnessing the actual act of
stabbing, he has nevertheless deposed about several material
aspects of the prosecution case.
43.1 Notably, PW-2 has categorically stated that:
• He was present at the spot along with the deceased and other
companions at the relevant time,• The accused persons, including the present accused Shiva
Chaudhary, were also present at the spot,• A quarrel had indeed taken place between the two groups,
• One of the co-accused was carrying a knife and the same was
handed over to the present accused Shiva.
43.2 However, he has denied having actually seen the
accused inflicting the knife blow upon the deceased. This
partial retraction, in the considered opinion of this Court,
appears to be a classic instance of a witness turning hostile to
a limited extent, possibly due to external influences, fear, or
reluctance to fully depose against the accused. It is not
uncommon in criminal trials, particularly those involving
local parties and young witnesses, that witnesses tend to
deviate from their earlier statements under various pressures.
44. The legal position regarding the evidentiary value of a
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 37 of 57
hostile witness is no longer res integra. It is well settled that
the testimony of a hostile witness cannot be discarded in toto
merely because he has not supported the prosecution case in
its entirety. The Court is entitled to rely upon such portion of
the testimony which is found to be credible, consistent and in
consonance with the overall case of the prosecution.
45. In this regard, reference may be made to the judgment
of the Hon’ble Supreme Court in Khujji @ Surendra Tiwari v.
State of Madhya Pradesh, (1991) 3 SCC 627, wherein it was
held that even if a witness is declared hostile, his evidence is
not to be rejected wholesale, and the portion of his testimony
which inspires confidence can be relied upon by the Court.
46. Applying the aforesaid principle to the facts of the
present case, this Court finds that the testimony of PW-2 is of
considerable and significance. His testimony clearly
establishes:
• The presence of the accused at the scene of occurrence,
• The factum of quarrel immediately preceding the incident,
• The crucial circumstance of the knife being handed over to the
accused.
46.1 These aspects form an important part of the chain of
events leading to the commission of the offence. Even thoughSC No. 11366/2023 State v. Shiva Chaudhary Page No. 38 of 57
PW-2 has denied witnessing the actual stabbing, his testimony
substantially corroborates the version of PW-4 with regard to
the genesis of the occurrence and the role of the accused in
the sequence of events.
46.2 It is also pertinent to note that the portion of testimony
wherein PW-2 supports the prosecution has remained
unshaken and has not been successfully impeached during
cross-examination. There is no reason for this Court to discard
the said part of his testimony, particularly when same is
consistent with the testimony of other witnesses and the
overall prosecution case.
46.3 Thus, the evidence of PW-2, though partly hostile,
cannot be brushed aside altogether. On the contrary, the
credible portion of his testimony lends material corroboration
to the prosecution case and strengthens the chain of
circumstances pointing towards the guilt of the accused.
47. PW-5 Lucky has also been examined as an eye-witness
to the occurrence. A careful appreciation of his testimony
reveals that he has supported the prosecution case to a
considerable extent, though he has resiled on the aspect of
identification of the accused in Court. He has deposed that on
the date of incident, when he along with the deceased andSC No. 11366/2023 State v. Shiva Chaudhary Page No. 39 of 57
other companions was returning from school, a quarrel took
place and during the said altercation, the deceased Mohan was
stabbed on his chest. However, when called upon to identify
the accused in Court, he expressed his inability to do so.
48. The testimony of PW-5, therefore, falls within the
category of a partly hostile witness, inasmuch as he supports
the prosecution on material aspects relating to the occurrence
but does not fully support it on the identity of the assailant.
49. The evidentiary value of such a witness has to be
assessed in light of settled legal principles. As already noted,
the testimony of a hostile witness is not to be rejected
outright. The Court is duty-bound to separate the grain from
the chaff and to rely upon such portion of the testimony which
is found to be credible and consistent with the overall
prosecution case.
49.1 In the present case, the statement of PW-5 that:
• A quarrel had taken place,
• The deceased was present at the spot,
• The deceased sustained a stab injury during the incident,clearly corroborates the core prosecution narrative
regarding the occurrence of the offence.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 40 of 57
49.2 His failure to identify the accused in Court, though
relevant, is not fatal to the prosecution case. Such failure may
be attributable to a variety of reasons including lapse of time,
fear, intimidation, or influence. It is also to be borne in mind
that the incident involved a sudden altercation among several
persons, and the witness may not have had sufficient
opportunity to observe the assailant with clarity. Moreover,
the identity of the accused stands firmly established from the
testimony of PW-4, which has been found to be reliable, as
well as from the dying declaration of the deceased. Therefore,
the inability of PW-5 to identify the accused does not create
any dent in the prosecution case.
49.3 Thus, the testimony of PW-5, to the extent it supports
the prosecution, lends corroborative value and reinforces the
occurrence of the incident in the manner alleged.
50. The prosecution has further relied upon the testimony
of PW-1 (father of the deceased) to establish an alleged oral
dying declaration made by the deceased while being
transported to AIIMS Trauma Centre. According to PW-1, the
deceased, while in a conscious state, named the accused,
Shiva Chaudhary, as the person who inflicted the fatal knife
injury.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 41 of 57
51. The defence has assailed the reliability of the said
dying declaration primarily on the ground that the deceased
was not in a medically fit condition to make any such
statement. In this regard, reliance has been placed on the
testimony of PW-9 (Nursing Officer, Poornima Sethi
Hospital), who deposed that the injured was non-responsive
during his stay at the said hospital. Further, PW-13 (autopsy
surgeon), in cross-examination, admitted that after sustaining
such injuries, the deceased may have remained capable of
speaking only for a limited duration of approximately 5-10
minutes.
51.1 When the aforesaid evidence is examined in light of the
factual timeline emerging from the prosecution case, it raises
doubt as to whether the deceased was in a fit condition to
make a coherent and reliable statement at the relevant time.
The deceased was initially taken to Poornima Sethi Hospital,
where he remained for about 15-20 minutes in a non-
responsive condition, and was thereafter shifted to AIIMS.
The alleged dying declaration is stated to have been made
during this transit.
51.2 In view of the medical evidence and the sequence of
events, this Court is of the considered opinion that the
prosecution has failed to satisfactorily establish that the
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 42 of 57
deceased was in a fit state of mind to make the alleged
statement. Nevertheless, the said declaration may still be
considered as corroborative evidence within the overall
factual matrix of the present case. Reliance is placed upon the
judgment of the Hon’ble Apex Court in Smt. Laxmi v. Om
Prakash & Ors. (AIR 2001 SC 2383), wherein it was held:
“28. A dying-declaration not being a deposition in Court,
neither made on oath nor in the presence of the accused
and therefore not tested by cross-examination is yet
admissible in evidence as an exception to the general rule
against the admissibility of heresay. The admissibility is
founded on the principle of necessity. The weak points of a
dying declaration serve to put the court on its guard while
testing its reliability and impose on the court an obligation
to closely scrutinise all the relevant attendant
circumstances. [see Tapinder Singh Vs. State of Punjab-
1971 (1) SCJ 871]. One of the important tests of the
reliability of the dying declaration is a finding arrived at by
the Court as to satisfaction that the deceased was in a fit
state of mind and capable of making a statement at the
point of time when the dying declaration purports to have
been made and/or recorded. The statement may be brief or
longish. It is not the length of the statement but the fit state
of mind of the victim to narrate the facts of occurrence
which has relevance. If the court finds that the capacity of
the maker of the statement to narrate the facts was
impaired or the court entertains grave doubts whether the
deceased was in a fit physical and mental state to make the
statement the court may in the absence of corroborative
evidence lending assurance to the contents of the
declaration refuse to act on it.”
(emphasis supplied)
51.3 The principle of law emerging from the aforesaid
judgment is that even where the maker of the dying
declaration is not proved to have been in a fit physical or
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 43 of 57
mental condition, or where the Court entertains serious doubts
regarding such fitness, the dying declaration is not rendered
inadmissible or liable to be discarded outright. It may still be
relied upon, provided there exists sufficient corroborative
evidence lending assurance to its contents. The present case
stands on a stronger footing, inasmuch as, apart from the oral
testimonies of the eyewitnesses, there also exists the aforesaid
dying declaration, which can safely be relied upon as
corroborative evidence, particularly because it is consistent by
the testimony of the eyewitnesses.
52. Upon a holistic appreciation of the evidence, this Court
finds that the prosecution case rests substantially on the
testimony of PW-4, which has been found to be cogent,
consistent, and reliable. The said testimony is materially
corroborated by:
• the presence of the accused at the scene (as supported by
PW-2);
• the sequence of events, including the handing over of the
knife;
• the medical evidence confirming the nature and cause of
injury; and
• the dying declaration made by the deceased to his father,
which is consistent with the testimony of PW-4.
53. Further, the medical evidence in the present case
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 44 of 57
constitutes a vital link in the chain of prosecution evidence
and serves as an important corroborative factor to the ocular
account. PW-13, the autopsy surgeon, has proved the post-
mortem report, opining that the cause of death was
haemorrhagic shock resulting from a penetrating stab injury to
the chest, which was sufficient in the ordinary course of
nature to cause death. It is well settled that where ocular
evidence is credible and trustworthy, medical evidence is
primarily corroborative. However, in cases of inconsistency,
the Court must examine whether such discrepancy strikes at
the root of the prosecution case.
54. In the present case, there is complete harmony between
the ocular and medical evidence. The injury described by the
doctor–a penetrating stab injury to the chest–fully
corresponds with the testimony of PW-4, who deposed that
the accused stabbed the deceased in the chest.
55. In the present case, the medical evidence not only
corroborates the ocular testimony but also rules out any
alternative hypothesis regarding the cause of death. There is
no suggestion that the injury could have been self-inflicted or
accidental. The nature, location and severity of the injury
clearly indicate a deliberate and forceful act.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 45 of 57
56. Furthermore, the opinion of the doctor that the injury
was sufficient in the ordinary course of nature to cause death
brings the case squarely within the ambit of clause thirdly of
Section 300 IPC, thereby attracting the offence of murder.
57. The next question which arises for consideration is
whether the act of the accused was done in furtherance of
common intention so as to attract the provisions of Section 34
IPC. Section 34 IPC embodies the principle of joint liability
and lays down that when a criminal act is done by several
persons in furtherance of common intention, each of them is
liable for the act as if it were done by him alone.
58. The essential ingredients for the applicability of Section
34 IPC are:
• A common intention shared by several persons,
• Participation of the accused in the commission of the act,
• The act being done in furtherance of such common
intention.
58.1 It is not necessary that each accused must perform a
separate overt act. What is required is a pre-arranged plan and
prior meeting of minds, which may develop even on the spur
of the moment.
59. In the present case, the evidence on record clearly
establishes that:
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 46 of 57
• The accused persons came together and intercepted the deceased
and his companions,• A quarrel ensued between the two groups,
• One of the co-accused was carrying a knife,
• The knife was handed over to the present accused Shiva
Chaudhary,• The accused thereafter used the said knife to inflict a fatal blow.
59.1 This sequence of events clearly demonstrates concerted
action and coordination between the accused persons.
60. The prior incident dated 28.01.2023, as deposed by
PW-2, PW-4 and PW-5, further indicates that there was
existing animosity between the parties. This prior quarrel
provides a background and strengthens the inference that the
accused persons acted with a common intention.
61. In the present case, the act of handing over the knife by
one co-accused to the present accused is a crucial
circumstance. It shows that the co-accused were aware of the
intended use of the weapon and facilitated the commission of
the offence. The present accused, by accepting the knife and
using it to inflict a fatal injury, acted in furtherance of the
shared intention.
62. The conduct of the accused persons before, during and
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 47 of 57
after the incident clearly indicates that they were acting in
concert. The presence of all accused at the spot, the initiation
of quarrel, the use of weapon, and the subsequent conduct
cumulatively establish the existence of common intention.
63. To summarize, the following facts stand proved beyond
reasonable doubt:
• The homicidal death of the deceased,
• The presence of the accused at the scene of occurrence,
• The prior quarrel indicating motive,
• The act of stabbing by the accused as deposed by PW-4,
• The medical evidence corroborating the nature of injury,
• The conduct of the accused and surrounding circumstances
indicating common intention.
64. In view of the foregoing detailed analysis and
appreciation of evidence, this Court finds that the prosecution
has been able to establish its case against the accused by
leading cogent, reliable and convincing evidence. The
testimony of PW-4, duly corroborated by the medical
evidence, dying delcaration and other testimonies, inspires
full confidence of this Court.
65. The defence raised several contentions assailing the
fairness and completeness of investigation, particularly
arguing that:
(i) no independent public witness was examined despite
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 48 of 57
the incident occurring in a public place;
(ii) no CCTV footage was collected;
(iii) viscera was not preserved; and
(iv) clothes of PW-3, who transported the injured, were not
seized.
66. At the outset, it must be noted that lapses or
deficiencies in investigation, though undesirable, do not ipso
facto entitle the accused to acquittal unless such lapses go to
the root of the prosecution case and create reasonable doubt
regarding the guilt of the accused.
67. In so far as the non-examination of independent public
witnesses is concerned, it is a matter of common experience
that public persons are often reluctant to come forward and
depose in criminal cases. The incident in the present case
involved school-going boys and occurred in a sudden and
volatile situation. The prosecution has examined natural
witnesses, namely the companions of the deceased, whose
presence at the spot is undisputed. Their testimonies cannot be
discarded merely because they are not independent witnesses.
68. With regard to non-collection of CCTV footage,
although such evidence would have been desirable, its
absence is not fatal in the present case. The prosecution case
is based on direct ocular testimony, which has been found
reliable. It is settled law that where trustworthy eyewitness
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 49 of 57
account is available, failure to collect electronic evidence does
not demolish the prosecution case.
69. As regards the contention relating to non-preservation
of viscera, the same does not materially affect the prosecution
case in the present facts. The cause of death stands
conclusively established through the post-mortem report,
which clearly attributes death to a penetrating stab injury to
the chest. There is no allegation of poisoning or any other
factor necessitating viscera examination.
70. Similarly, the non-seizure of clothes of PW-3, who
transported the injured, is at best a procedural lapse. PW-3 is
not an eyewitness to the assault, and his role is limited to
shifting the injured to the hospital. The absence of seizure of
his clothes does not create any dent in the core prosecution
case, particularly when the factum of injury and its nature
stand independently proved.
71. The defence has also attempted to introduce an
alternative version through DW-1, who claimed that some
other person inflicted the injury. However, the testimony of
DW-1 is vague, unsupported by any corroborative material,
and does not inspire confidence. It appears to be an
afterthought and is insufficient to probabilise an alternative
hypothesis.
SC No. 11366/2023 State v. Shiva Chaudhary Page No. 50 of 57
72. The defence has failed to point out any material
contradiction or inconsistency which would go to the root of
the prosecution case. The minor discrepancies highlighted are
natural and do not dent the substratum of the prosecution
version.
73. The cumulative effect of the evidence on record clearly
establishes that accused Shiva Chaudhary inflicted the fatal
stab injury upon the deceased Mohan, and that the said act
was done in furtherance of common intention.
74. This Court is thus satisfied that the prosecution has
successfully proved the guilt of the accused beyond
reasonable doubt.
75. Accordingly, accused Shiva Chaudhary is held guilty in
the instant case. He stands convicted for the offence
punishable under Section 302 IPC read with Section 34 IPC.
Digitally
signed by
ANUJ
76. Parties be heard on the point of sentence. ANUJ AGRAWAL
AGRAWAL Date:
2026.05.26
14:31:52
+0530Announced in the open (ANUJ AGRAWAL)
Court on 26.05.2026 Additional Sessions Judge-03,
South East, Saket Courts, New DelhiSC No. 11366/2023 State v. Shiva Chaudhary Page No. 51 of 57
Appendix
Chart for witnesses examined:
Prosecution Name of Description
Witness No. Witness
PW1 Mr. Rakesh Father of the deceased Mohan,
who took his son to AIIMS
Hospital.
PW2, Mr. Kishan, They are the eye-witnesses of the
PW3, Mr. Sagar, incident.
PW4 & Mr. Sumit &
PW5 Mr. Lucky
PW6 Mr. Kores He took the injured / deceased
Mohan to the hospital on the bike.
PW7 Mr. Anurag Rathor He is the teacher of the school who
made the call to accused for his
practical examination.
PW8 SI Ravi Kumar He is the first Investigating Officer
(IO), who deposed about the
investigation carried out by him.
PW9 Ms. Manjeet Kaur, She deposed that on 23.01.2023
Senior Nursing injured was firstly admitted in
Officer Poornima Sethi Hospital.
PW10 Dr. Samar, Chief He had firstly examined the
Administrative injured/deceased and thereafter
Officer South Zone, referred him to AIIMS Hospital.
MCD, Mehrauli
Urban Primary
Health Center.
PW11 Mr. Yatin Chawla He was the Nodal Officer, who
proved the CAF, CDR in respect of
mobile phone no. 892xxxx406 of
accused Shiva Ex.PW11/P1 & Ex.
PW11/P2.
PW12 ACP Mukesh Kumar He visited the spot and prepared
Jain the scaled site plan Ex. PW12/PI.
PW13 Dr. Jhansi Lakshmi She had conducted the postmortem
Mylapalli of the deceased vide PM report
Ex. PW13/P1.
As per said report, the cause of
death hemorrhage shock
subsequent to penetrating injuries
(stab) to the chest by sharp forced
/ impact. All injuries were ante
mortem in nature and injury no. 2
is fatal and sufficient to cause
death in ordinary course of nature.
She also proved her subsequent
opinion Ex. PW13/P3, thereby
opining that possibility to injury
No. 2 sustained by deceased
having been caused by weapon of
offence can not be ruled out.
PW14 HC Naresh, He visited the spot and clicked
Photographer, photographs of the spot Ex.
Mobile Crime Team PW14/A1 to PW14/A11.
PW15 ASI Ravi Kumar, In- He inspected the spot and prepared
charge Mobile Crime the crime team report Ex.
Team PW15/P1.
PW16 HC Sudhir Kumar, He proved the PCR form Ex.
CPCR, Nodal Officer PW16/P1, regarding the incident,
received vide Event ID No.
6486976 dated 30.01.2023.
PW17 Mr. Pradeep Kumar, He deposed that on 30.01.2023
TGT, Hindi accused did not attend school and
his practical examination was
scheduled, but after being
contacted accused appeared in
History Practical examination after
recess. He proved the attendance
record, reply of Principal and
School as Ex. PW17/P1 to
PW17/P4.
PW18 Ct. Suman Prakash On 16.02.2023, he collected three
sealed exhibits with sample seal
and deposited the same at FSL vide
RC No. 28/21/23 Mark 18/A,
obtained acknowledgment Ex.
PW18/P1.
PW19 Ct. Satyapal Singh He is witness to the investigation.
PW20 Inspector Yogesh He is one of the Investigating
Kumar Officer who got conducted inquest
proceedings and post-mortem;
prepared death report Ex. PW20/A;
recorded statements of the relatives
for identification of dead body;
seized sealed exhibits vide memo
Ex. PW20/C and filed supple-
mentary charge-sheet including
DNA report and subsequent
medical opinion regarding weapon
of offence.
PW21 Inspector Mukesh He is the IO of the case and
Baliyan deposed about the investigation
carried out by him and filing of the
charge sheet.
Chart of Exhibited Documents
Exhibit Description of the exhibit Proved by / Attested
No. by
1 Dead body identification statement of PW1 Rakesh
PW Rakesh Ex. PW1/A;
Dead body handing over memo Ex.
PW1/B;
Copy of Aadhar Card of PW1
Rakesh Ex. PW1/C;
2 Arrest memo of accused Ex. PW2/1; PW2 Kishan
Personal search memo of accused Ex.
PW2/2;
3 Site plan Ex. PW3/A PW3 Sagar
4 DD No. 44A Ex. PW8/A; PW8 SI Ravi Kumar
Rukka Ex. PW8/B;
Seizure memo of clothes of the
injured Ex. PW8/C;
DD No. 74A Ex. PW8/D;
MLC of the deceased Ex. PW8/DX1;
5 Initial treatment paper of injured / PW9 Ms. Manjeet
deceased Ex. PW9/DA Kaur
6 Reply of Dr. Samar / PW10, pursuant PW10 Dr. Samar
to the notice given by the police Ex.
PW10/P1
7 E-KYC of mobile number of accused PW11 Mr. Yatin
Ex. PW11/P1; Chawla
CDR of mobile number of accused
Ex. PW11/P2;
Certificate in respect of CDR and E-
KYC of the mobile phone of accused
Ex. PW11/P3;
8 Scaled site plan Ex. PW12/P1 PW12 ACP Mukesh
Kumar Jain
9 PM report Ex. PW13/P1; PW13 Dr. Jhansi
Application for conducting Lakshmi Mylapalli
postmortem Ex. PW13/P2;
Subsequent opinion regarding the
cause of death Ex. PW13/P3;
Printout of the picture of weapon of
offence Ex. PW13/P4
10 Photographs of the spot Ex. PW14 HC Naresh
PW14/A1 to PW14/A11
11 Report of ASI Ravi Kumar, Mobile PW15 ASI Ravi
Crime Team Ex. PW15/P1 Kumar
12 PCR form pertaining to event ID PW16 HC Sudhir
6486976 dated 30.01.2023 Ex. Kumar
PW16/P1;
Certificate u/s. 63 BSA in respect of
said PCR form Ex. PW16/P2
13 Authorization letter of the principal PW17 Pradeep
of School of Excellence Ex. Kumar
PW17/P1;
Reply of principal of School of
Excellence Ex. PW17/P2;
Attendance Sheet of the school Ex.
PW17/P3;
Copy of school leaving certificate of
accused Ex. PW17/P4
14 Exhibits deposited at FSL vide RC PW18 Ct. Suman
Mark 18/A; Prakash
Acknowledgment from FSL Ex.
PW18/P1
15 Pointing out memo of flat of CCL PW19 Ct. Satyapal
‘AKM’ Ex. PW19/A’ Singh
16 Death report (form No. 25.35) Ex. PW20 Inspector
PW20/A; Yogesh Kumar
Statement of Vinod, relative of
deceased Ex. PW20/B;
Seizure memo of exhibits pertaining
to deceased Ex. PW20/C;
17 Pointing Out memo of place of PW21 Inspector
occurrence Ex. PW21/A; Mukesh Baliyan
PCR form Ex. PW21/B;
Forwarding letter sent alongwith
exhibits sent to FSL Ex. PW21/C;
18 MLC of accused Shiva Chaudhary Admitted by accused
Ex. PA; vide his statement
FSL result from Bio Division Ex. U/s. 294 Cr.PC
AD1
Chart for Material Objects/Muddamals
Material Description of the Proved
Object no. Exhibit by/Attested by
1. Weapon of offence i.e. PW13 Dr. Jhansi Lakshmi
Knife Ex. 5 Mylapalli
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