Firoz @ Sagar vs State on 5 August, 2026

August 6, 2026

Delhi High Court

Firoz @ Sagar vs State on 5 August, 2026

1. These appeals have been preferred by the appellants, namely,
Firoz @ Sagar, Shehzad, Sanjay Kumar, Rajesh, Nasim Ahmad @
Sagar and Rahish Khan, against the impugned judgment of conviction
dated 12th July, 2002 and the order on sentence dated 18th July, 2002,
passed by the learned Additional Sessions Judge, Delhi [“Trial
Court”] in Sessions Case No. 17/1998, arising out of case FIR No.
751/1997, registered under Sections 302/34 of the Indian Penal Code,
1860 [“IPC“] and Section 27 of the Arms Act, 1959 [“Arms Act“] at
Police Station [“P.S.”] Nangloi, convicting all the appellants of the
offence punishable under Section 302 read with Section 34 of the IPC.

SPONSORED

2. Appellant Rahish Khan has also challenged his conviction for
the offence punishable under Section 25 Arms Act, in Sessions Case
No. 18/1998, arising out of case FIR No. 759/1997, registered at P.S.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 3 of 47
PRUTHI
Signing Date:05.08.2026
17:10
Nangloi by filing a common appeal.

3. Since these appeals involve identical questions of fact and law
and assail the common impugned judgment, they are being disposed
of together by this common judgment.

Brief Facts

4. In brief, the prosecution case is that on 19th September, 1997,
appellants Rajesh Kumar and Nasim approached the victim Nar Singh,
resident of House No. 105, Kavita Colony, Nangloi, Delhi, for taking
a room on rent. Nar Singh owned a three storeyed house, in which he
had let out rooms to various tenants. He agreed to let out one room to
them on the first floor of his house on a rent of Rs. 900/- per month.
Nasim paid a sum of Rs. 400/- as advance and agreed to pay the
balance amount at the time of taking possession of the said room. At
about 7:00-8:00 pm, the same day, Rajesh and Nasim returned to
occupy the rented room. They stayed in the rented room during the
evening hours.

5. At about 10:00 pm, Nar Singh and his two wives, namely Smt.
Chandra Prabha (PW-9) and Smt. Rekha (PW-3), along with their two
children, had gone to sleep. Nar Singh slept on a cot at the roof of the
house, while PW-3 and PW-9 slept in the gallery of the first floor with
the children. At around 2:00 am, Chandra Prabha (PW-9) felt that
someone was pressing her face and neck. She woke up and found that
4-5 boys had surrounded their cots. One of the boys had lifted the
elder son, namely Navneet, with his hands, while another boy had an
open knife in his hand. PW-9 cried loudly, and upon hearing the same,
PW-3 Rekha, who was sleeping on her cot, also got up and

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 4 of 47
PRUTHI
Signing Date:05.08.2026
17:10
immediately switched on the light of the gallery and started shouting
loudly “Chor Chor”. On hearing the noise, the other tenants also got
up. On seeing them, those boys jumped into the gali from the first
floor and ran away.

6. Immediately thereafter, PW-3 Rekha along with PW-9 Chandra
Prabha rushed to the second floor of the house and found Nar Singh
lying in a room, smeared with blood. He was tied with ropes and his
mouth was gagged with a cloth.

7. Someone gave a call to the Police Control Room. PCR van
came at the spot. HC Ishwar Singh (PW-11) of the PCR van,
accompanied by a tenant namely Ajmer Singh (PW-18), rushed Nar
Singh to DDU Hospital, where he was declared “brought dead”. It is
also the case of the prosecution that on the way to the hospital, the
deceased made a statement, wherein he categorically implicated
appellant Rahish, his two new tenants, and their associates.

8. PW-27 SI Azad Singh, Investigating Officer [“IO”], took up
the investigation of the case. He recorded the statement of Chandra
Prabha (PW-9), which is Ex. PW-9/A, wherein she stated that she
suspected the involvement of two tenants, who came to reside at about
8:00-9:00 pm, but were missing. On such statement, SI Azad Singh
prepared the rukka Ex. PW-27/A and got registered the FIR No.
751/1997 (Ex. PW-16/A), under Sections 302/34 IPC, PS Nangloi.

9. The Crime team was called at the spot. The Crime Team
inspected the spot and prepared its report. The photographs of the spot
were taken. The site plan of the place of occurrence (PW-27/B) was
prepared and MLC of the victim (Ex. PW-1/A) was collected. Exhibits

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 5 of 47
PRUTHI
Signing Date:05.08.2026
17:10
were lifted from the spot and were kept in separate pullandas, which
were sealed with the seal of “ASK” and seized vide separate seizure
memos. The exhibits were sent to Forensic Science Laboratory
[“FSL”] for examination.

10. On 21st September, 1997, the post-mortem of the deceased Nar
Singh was conducted by PW-2 Dr. Komal Singh. The cause of death
as per the post-mortem report (Ex. PW-2/A) was suffocation caused
by closure of mouth by means of a foreign material (may be a cloth
piece).

11. On 23rd September, 1997, during investigation of case FIR No.
747/1997, appellant Rahish Khan was apprehended by ASI Karan
Singh (PW-25) on suspicion. On his search, a button actuated knife
was recovered from the right pocket of his pant. A separate FIR
bearing No. 759/1997 was registered under Section 25 Arms Act at PS
Nangloi. Appellant Rahish Khan was arrested in the said case. Upon
interrogation, he gave disclosure statement regarding his involvement
in case FIR No. 751/1997 and stated that he along with his associates
had committed murder of the deceased Nar Singh and that the
recovered knife was used in the said offence. He was then formally
arrested in case FIR No. 751/1997. Pursuant to his disclosure
statement, appellants Nasim, Shehzad, Sanjay and Firoz were
apprehended from Dass Garden, near Baprola Village, Nangloi,
Najafgarh, Delhi. They were gotmedically examined.

12. The aforesaid five appellants were produced in court on 24th
September, 1997. Their Test Identification Parade [“TIP”] was
conducted on 25th September, 1997, but they refused, stating that they

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 6 of 47
PRUTHI
Signing Date:05.08.2026
17:10
were shown to the witnesses in the Police Station.

13. On 04th October, 1997, appellant Rajesh Kumar surrendered
before the court. He was formally arrested in case FIR No. 751/1997.
Upon interrogation, he gave disclosure statement. He was produced in
court for TIP, but he also refused to join the same.

14. On completion of the investigation, charge sheet was filed
against all the appellants under Sections 302/395/511/34 IPC. A
separate charge sheet was filed against appellant Rahish Khan under
Section 25 of the Arms Act.

Proceedings before the learned Trial Court:

15. The appellants were charged for an offence punishable under
Section 302 IPC, besides a separate charge framed against appellant
Shehzad for the offence punishable under Section 27 of the Arms Act
and another charge framed against appellant Rahish Khan for the
offence punishable under Section 25 of the Arms Act, to which they
pleaded not guilty and claimed trial.

16. In order to prove its case, prosecution examined 29 witnesses.
Dr. Rani Vohra (PW-1) proved the MLC of the deceased; Dr. Komal
Singh (PW-2) conducted the post-mortem of the deceased; Smt.
Rekha (PW-3) and Smt. Chandra Prabha (PW-9) are the two wives of
the deceased and are the main witnesses of the occurrence; Constable
Siri Ram (PW-4), Lady Constable Prabha (PW-5), Constable P.P.
Virgese (PW-6) and Constable Chander Pal (PW-7) are the witnesses
of investigation; Sh. Ram Singh Khatri (PW-8) and Sh. Mahinder
Singh (PW-13) are the witnesses of identification of the body of the
deceased; Lady Head Constable Darshan (PW-10) is the formal

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 7 of 47
PRUTHI
Signing Date:05.08.2026
17:10
witness of investigation; Head Constable Ishwar Singh (PW-11) took
the deceased to the hospital in the PCR van; Constable Surinder
Kumar (PW-12), Constable Desh Raj (PW-14) and Head Constable
Siri Bhagwan (PW-15) are the witnesses of investigation, who assisted
the IO SI Azad Singh in the investigation of the case; Jeet Singh
(PW-15A), who is the brother of deceased Nar Singh and was present
at the house when the appellants Nasim and Rajesh came and
contacted his brother for taking room on rent; Head Constable Ram
Mehar (PW-16) is the Duty Officer who recorded the FIR (Ex. PW-
16/A); Constable Ranbir Singh (PW-17) is the witness of
investigation; Ajmer Singh (PW-18) was one of the tenants in the
house, who accompanied the deceased to the hospital in the PCR van;
Head Constable Om Prakash (PW-19) prepared the scaled site plans of
the place of occurrence (Ex. PW-19/A & Ex. PW-19/B); Head
Constable Joginder Singh (PW-20) assisted the IO in the investigation
conducted from 07th October, 1997 to 09th October, 1997, Mr. Sudhir
Kumar Jain (PW-21), the then learned MM had conducted the TIP of
appellant Rajesh Kumar; Mrs. R.S. Nag (PW-22), the then learned
MM granted judicial remand to all the appellants produced before her
except appellant Rajesh Kumar; Constable Dharambir Singh (PW-23),
took photographs of the spot; Sh. Rakesh Garg (PW-24), the learned
MM had conducted the TIP of the appellants except appellant Rajesh;
ASI Karan Singh (PW-25) recovered the knife and arrested the
appellant Rahish Khan in case FIR No. 751/1997; Sh. Bhagat Singh
(PW-26) is the landlord of appellant Rajesh Kumar, and according to
him, the other appellants were also staying with him in the same

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 8 of 47
PRUTHI
Signing Date:05.08.2026
17:10
room; SI Azad Singh (PW-27) is the IO of the case and Constable
Jaiveer (PW-28) is the witness to the recovery and arrest of appellant
Rahish Khan.

17. Statements of the appellants were recorded under Section 313
of the Code of Criminal Procedure, 1973 [“Cr.P.C.”], wherein they
denied all the incriminating evidence put to them and claimed that
they were innocent and were falsely implicated. They refused to lead
evidence in their defence.

Impugned Judgement of Conviction and Order on Sentence:

18. The learned Trial Court, in the impugned judgment of
conviction, held all the appellants namely Firoz @ Sagar, Shehzad,
Sanjay Kumar, Rajesh Kumar, Nasim Ahmad and Rahish Khan guilty
of the offence under Section 302/34 IPC. Appellants Shehzad and
Rahish Khan were also held guilty under Section 25 Arms Act.

19. Vide the order on sentence dated 18th July, 2002, all the six
appellants were sentenced to undergo Imprisonment for Life with fine
of Rs. 1000/- each under Section 302 IPC read with Section 34 IPC,
and in default of payment of fine, they were directed to undergo
further Rigorous Imprisonment [“RI”] for one year each.

20. Appellants Shehzad and Rahish Khan were further sentenced
with one year RI each for the offence punishable under Section 25
Arms Act.

21. Feeling aggrieved, the appellants preferred the present appeals.
The sentences awarded to the appellants were suspended during the
pendency of the appeals.

22. During the pendency of the appeal, vide order dated 11th July,

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 9 of 47
PRUTHI
Signing Date:05.08.2026
17:10
2025, appellants Shehzad, Nasim @ Sagar and Rajesh Kumar were
declared Proclaimed Offenders. Amicus Curiae were therefore
appointed to assist us on their behalf.

Submissions made by the learned counsel for appellant Firoz @
Sagar

23. Sh. Devraj Singh, learned counsel appearing for the appellant
Firoz @ Sagar, has assailed the judgment of conviction as being
contrary to law and evidence on record, contending that the learned
Trial Court failed to appreciate that the prosecution’s case rests
entirely on circumstantial evidence, thereby requiring every
incriminating circumstance to be proved beyond reasonable doubt and
to form a complete and unbroken chain pointing towards the guilt of
the accused. It was argued that prosecution has failed to establish such
a chain and that the evidence on record is riddled with material
inconsistencies, omissions and improvements.

24. The learned counsel submitted that there is no evidence
demonstrating any common intention on the part of the appellant to
commit the murder of Nar Singh nor is there any evidence establishing
his presence at the place where the deceased was found murdered. It
was urged that the learned Trial Court erroneously inferred common
intention despite the absence of any material indicating that the
appellant participated in or shared the intention to commit the offence.
Furthermore, that the prosecution failed to prove any motive
attributable to the appellant, which assumes considerable significance
in a case founded solely on circumstantial evidence.

25. It was further argued that the investigation suffered from

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 10 of 47
PRUTHI
Signing Date:05.08.2026
17:10
serious infirmities, including the alleged fabrication of dying
declaration by the IO, which was rightly disbelieved by the Trial
Court itself on the ground that there was no evidence that deceased
was in a fit condition to make any such statement. It was submitted
that the IO’s attempt to create false evidence casts serious doubt on
the fairness of the investigation.

26. The learned counsel further submitted that the identification of
the appellant by PW-3 Smt. Rekha and PW-9 Smt. Chandra Prabha
was wholly unreliable. It was argued that the learned Trial Court itself
recorded that PW-9 had undergone severe trauma and shock upon
being assaulted and discovering that her husband had been killed,
which necessarily impaired her faculties of observation and rendered
her identification of the appellant unsafe. It was further pointed out
that PW-9 did not name the appellant in the initial complaint, on the
basis of which the FIR was registered.

27. The learned counsel further submitted that the eye-witnesses
had insufficient opportunity to observe and remember the features of
the alleged assailants, as the incident occurred suddenly under
frightening circumstances, and therefore in such state of mind, it was
not possible for them to identify any of the appellants, allegedly
present in the gallery of the house in the intervening night of 19th/20th,
September, 1997.

28. It was further argued that PW-3 made several material
improvements in her statement recorded under Section 161 Cr.P.C.,
including assertions regarding restoration of electricity, switching off
of the light, the accused carrying ropes, threats allegedly extended by

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 11 of 47
PRUTHI
Signing Date:05.08.2026
17:10
the appellant to kill Navneet, blood on the face of PW-9, recovery of a
black bag containing ropes, the arrival of neighbours, the accused
jumping from the first floor, the handing over of keys to Rajesh and
Nasim and the conversations allegedly made on the evening preceding
the incident. These omissions and subsequent improvements,
according to the learned counsel of appellants, materially affected the
credibility of the testimonies of the prosecution witnesses.

29. The learned counsel further contended that although
fingerprints and footprints were lifted from the scene, but none
matched the appellant, thereby, negating his presence at the spot. It
was also submitted that the learned Trial Court erroneously relied
upon the alleged recovery of a bag containing ropes from the gallery,
despite PW-3 having omitted this fact in her statement under Section
161 Cr.P.C. In these circumstances, it was urged that the prosecution
has failed to establish the appellant’s involvement beyond reasonable
doubt, and therefore, the impugned judgment deserves to be set aside.
Submissions made by the learned Amicus Curiae for appellant
Shehzad

30. Ms. Shilpa Ohri, learned Amicus Curiae for the appellant
Shehzad, submitted that the conviction and sentence awarded by the
learned Trial Court is unsustainable. It was further argued that the
close relatives of the deceased were set up as eye-witnesses in a
desperate bid to solve a blind murder.

31. It was argued that appellant Shehzad has been falsely
implicated solely on the basis of the disclosure statement of appellant
Rahish Khan, which is inadmissible in evidence.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 12 of 47
PRUTHI
Signing Date:05.08.2026
17:10

32. It was further contended that the arrest of appellant Shehzad,
allegedly made on 23rd September, 1997, from Dass Garden near
Baprola Village, near Nangloi-Najafgarh Road, along with other
appellants at the instance of Rahish Khan, who was already arrested in
another case, is only a made up story, as the appellant could not be
expected to be available at the place of arrest together with the other
appellants. Moreover, PW-26 Bhagat Singh, owner of the house from
where appellant Shehzad and other appellants were apprehended by
the police, has not identified any of the appellants in court. It is also
argued that the place of arrest is a thickly populated area, but no
independent public witness was joined in the arrest proceedings.

33. It was further submitted that the testimony of PW-3 Rekha
reveals that the accused persons had been shown to the witnesses in
the court premises prior to the TIP, thereby, vitiating the entire TIP
proceedings. Moreover, even prior to the TIP, accused persons had
been taken from place to place and even at the spot and were shown to
the witnesses, and therefore, appellant Shehzad was justified in
refusing to participate in the TIP.

34. The learned Amicus Curiae also assailed the alleged recovery of
the blood-stained knife, contending that PW-18 Ajmer Singh had
noticed the knife lying outside the house immediately after the
incident, whereas, the investigating agency purportedly seized the
same only at a later stage, making the recovery highly doubtful and
tainted.

35. It is also argued that the knife allegedly recovered from the gali
is not connected either with the crime or with the appellant Shehzad.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 13 of 47
PRUTHI
Signing Date:05.08.2026
17:10

The forensic evidence also does not support the prosecution case, as
the FSL result recorded “no reaction” in respect of knife recovered
just outside the house. Moreover, no public person is witness to the
seizure memo. It was thus argued that the recovery of knife shown is
planted.

36. Lastly, the learned Amicus Curiae submitted that in a case
based on circumstantial evidence, motive assumes considerable
significance, but in this case, the prosecution has failed to establish
any motive on the part of appellant Shehzad to commit the murder.
Hence, based upon the aforesaid submissions, it was prayed that the
impugned judgment of conviction and order on sentence be set aside
and the appellant Shehzad be acquitted of all charges.
Submissions made by the learned counsel for the appellant Sanjay

37. Mr. M.L. Yadav, learned counsel, who appeared for appellant
Sanjay, submitted that the entire prosecution case rests solely upon
circumstantial evidence and that the prosecution has failed to establish
a complete and unbroken chain of circumstances, pointing only
towards the guilt of the appellant. The learned counsel argued that the
testimonies of PW-3 Smt. Rekha and PW-9 Smt. Chandra Prabha are
wholly unreliable, being self-contradictory as well as materially
inconsistent with each other on crucial aspects of the prosecution case.
It was submitted that their testimonies do not inspire confidence, and
therefore, their evidence ought not to have been relied upon by the
learned Trial Court.

38. It was further contended that even according to the prosecution
case, there is no specific allegation against appellant Sanjay. The

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 14 of 47
PRUTHI
Signing Date:05.08.2026
17:10
appellant was not previously known to the witnesses. He contended
that the appellant Sanjay was shown to the witnesses after his arrest,
thereby, rendering the TIP meaningless.

39. It was further argued that no recovery whatsoever was effected
from the appellant or pursuant to any disclosure made by him.

40. It was also argued that there is a categoric finding by the
learned Trial Court that the testimonies of the two prosecution
witnesses namely HC Ishwar Singh (PW-11) and Ajmer Singh (PW-

18) were replete with falsehood and were not above board. In fact,
their testimonies have not been believed by the learned Trial Court on
material points.

41. On a cumulative assessment of the above circumstances, it was
argued that prosecution has failed to prove the guilt of the appellant
beyond reasonable doubt.

Submissions made by the learned counsel for appellant Rahish
Khan

42. Mr. Ragib Gayyur, learned counsel, who appeared for the
appellant Rahish Khan, submitted that the impugned judgment of
conviction is contrary to law and founded merely on conjectures and
surmises without proper appreciation of the evidence on record. The
learned counsel submitted that testimonies of PW-9 Smt. Chandra
Prabha, PW-3 Smt. Rekha, PW-15 Jeet Singh and PW-18 Ajmer
Singh are full of infirmities, discrepancies and contradictions.

43. PW-3 Smt. Rekha had testified in her examination-in-chief that
when she raised an alarm for help, the accused persons remained in
their house till the arrival of their neighbours, but in her cross-

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 15 of 47
PRUTHI
Signing Date:05.08.2026
17:10

examination, she deposed that their tenants had reached when accused
had run away. Further, PW-3 had testified that accused persons had
surrounded her sister Smt. Chandra Prabha only and not her. She
admitted that the moment she woke up, none caught hold of her nor
grappled with her, but during her cross-examination, she admitted that
the accused persons had also caught her.

44. It was contended that the learned Trial Court overlooked
significant material improvements made by PW-3 in her deposition by
introducing facts, which did not find place in her previous statement to
the police, including that accused Nasim was carrying a bag
containing ropes, accused Rajesh and Nasim had demanded the keys
of their rented room, electricity had returned before they went to sleep
and the accused had switched off the light, that the person carrying the
knife was Shehzad and that accused fled by jumping over the
boundary wall upon arrival of the neighbours. According to the
learned counsel, these material improvements clearly indicate that
PW-3 was not present at the spot and was planted as a witness.

45. The learned counsel further submitted that the testimony of
PW-9 Smt. Chandra Prabha also suffers from serious infirmities and
does not inspire confidence. It was argued that her version, that
accused Nasim had pressed the mouth of PW-3 Smt. Rekha, is
contrary to the prosecution’s case, while her statement regarding the
presence of 7 to 8 tenants in the house is inconsistent with the
testimony of PW-3, who deposed that there were 10 to 12 tenants
residing therein. It was also pointed out that PW-9 stated that PW-3
had informed her that the person carrying the knife had suffered an

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 16 of 47
PRUTHI
Signing Date:05.08.2026
17:10
injury on his left leg, whereas, PW-3 made no such assertion.
According to the learned counsel, these contradictions create serious
doubt regarding the presence of PW-9 at the scene of occurrence.

46. It was also argued that even as per the prosecution case, no
specific role has been attributed to the present appellant and none of
the prosecution witnesses has specifically established his presence at
the place of occurrence.

47. It was also argued that the alleged recovery of knife from the
appellant at the time of his arrest, is unsupported by any independent
witness and rests solely upon the testimony of PW-25 ASI Karan
Singh, thereby, rendering the recovery doubtful. It was also contended
that there is no evidence to establish as to whether PW-18 Ajmer
Singh and appellant were known to each other prior to the incident.
PW-3 Smt. Rekha and PW-9 Smt. Chandra Prabha have also not
supported the said version. It was thus argued that prosecution has
failed to prove its case against the appellant beyond reasonable doubt,
and therefore, the impugned judgment and the order on sentence are
liable to be set aside.

Submissions made by the learned counsels for the appellants
Nasim & Rajesh Kumar

48. Mr. Rohan J. Alva and Mr. Dinesh Malik, respective Advocates
for the appellants Nasim and Rajesh, additionally submitted that
despite the witnesses claiming that appellants Nasim and Rajesh were
known to them being newly inducted tenants, their names do not
figure in the earliest version of the prosecution, that is, DD No. 66-B
(Ex. PW-7A) or the statement given by Smt. Chandra Prabha, which

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 17 of 47
PRUTHI
Signing Date:05.08.2026
17:10
formed the basis of registration of the FIR.

49. It was submitted that PW-9 Smt. Chandra Prabha had not seen
the appellants Nasim and Rajesh at the place of occurrence. She
merely suspected them because they were missing from the house.
Moreover, no rent agreement or rent receipt has been placed on record
to prove that the appellants were inducted as tenants in the premises.

50. It was further argued that the appellants were not known to the
deceased and his family members, thus, no previous enmity is
established. It was also argued that prosecution has failed to establish
the motive for the murder to be the lust for money as not a single
article or penny had been taken away by the appellants after the
incident.

51. The learned Amicus for appellant Nasim also reiterated that the
learned Trial Court erred in drawing an adverse inference regarding
the appellants’ refusal to participate in TIP proceedings. He submitted
that the appellant Nasim had categorically stated that he had been
shown to the prosecution witnesses at Police Station prior to the TIP.
He placed reliance upon the Judgment of the Supreme Court in Raj
Kumar @ Bheema v. State NCT of Delhi, 2025 SCC OnLine SC
2465, to submit that in such a case the admissibility and sanctity of
TIP proceedings would stand compromised.

Submissions made by the learned Additional Public Prosecutor

52. Mr. Aman Usman, learned Additional Public Prosecutor
[“APP”] submitted that there are no infirmities in the impugned
judgment passed by the learned Trial Court.

53. He submits that there is sufficient evidence to establish the guilt

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 18 of 47
PRUTHI
Signing Date:05.08.2026
17:10
of all the appellants. He submitted that the learned Trial Court gave
well reasoned findings and recorded the conviction based on sound
appreciation of evidence and settled principles of law, and therefore,
calls for no interference by this Court.

54. It was contended that prosecution proved through the
testimonies of PW-3 Smt. Rekha and PW-9 Smt. Chandra Prabha that
appellants Nasim and Rajesh had taken room on rent in the house of
the deceased on the very day of the incident and returned in the
evening with their belongings, and during the intervening night, they
along with other appellants entered the premises and murdered Nar
Singh by tying him with ropes and forcibly suffocating his mouth with
cloth pieces, resulting in death by Asphyxia and thereafter tried to
overpower PW-3 and PW-9.

55. It was submitted that prompt lodging of the FIR immediately
after the occurrence rules out any possibility of embellishment or false
implication, as even in the earliest version suspicion was expressed
against the newly inducted tenants and their associates.

56. It was argued that the medical evidence of PW-2, Dr. Komal
Singh, the post-mortem report, the recoveries effected from the spot
and the FSL Report completely corroborate the ocular version of PW-
3 and PW-9 and establish that the death was homicidal in nature.

57. The learned APP further submitted that even though there was
no eye-witness to the commission of murder, the prosecution has
successfully proved an unbroken chain of circumstantial evidence,
including the presence of the appellants immediately after the
occurrence, armed with knives and rope and their abscondence

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 19 of 47
PRUTHI
Signing Date:05.08.2026
17:10
thereafter and subsequent identification by the prosecution witnesses.

58. It was further submitted that the absence of the names of
Rajesh, Nasim and Rahish Khan in the rukka is of no consequence, as
FIR is not an encyclopaedia of the occurrence, and it only sets the
criminal law in motion. It was contended that the names of the
appellants and their individual roles played by them were duly
disclosed in the statement of PW-3 Smt. Rekha recorded under
Section 161 Cr.P.C. shortly thereafter and in the testimonies of PW-3
and PW-9 recorded before the court.

59. It was further contended that the refusal of the appellants to
participate in the TIP justified the adverse inference drawn by the
learned Trial Court, particularly when, there was no evidence to
substantiate the allegation that they had been shown to the witnesses
before the TIP. The prosecution witnesses had ample opportunity to
see the appellants in electric light during the incident, while PW-3 and
PW-15A had also seen Rajesh and Nasim earlier in the day when the
room was let out to them.

60. It is argued that there was no previous enmity between the
witnesses and the appellants, and therefore, there was no conceivable
reason for the prosecution witnesses to falsely implicate strangers
while allowing the real offenders to escape. It was also argued that the
absence of specific overt act against each individual appellant in the
FIR is immaterial as the evidence unmistakably establishes that all the
appellants acted in furtherance of their common intention.

61. The learned APP further submitted that the subsequent conduct
of the appellants furnishes strong corroboration to the prosecution

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 20 of 47
PRUTHI
Signing Date:05.08.2026
17:10
case. They were apprehended from a common hideout, a blood-
stained knife was recovered from appellant Rahish Khan and the
medical examination of appellant Shehzad revealed injuries consistent
with the prosecution case that he suffered injuries while jumping from
the first floor after the commission of the offence.

62. It was further submitted that the statements made by the
appellants before the learned Metropolitan Magistrate during remand
proceedings, though may not be treated as judicial confessions,
nevertheless, constitute extra-judicial confessions, lending
corroboration to the prosecution case. In furtherance he relied upon a
judgment of the High Court of Patna in Nand Kishore Singh & Anr.
v. State of Bihar & Ors., 1991 SCC OnLine Pat 101, in support of his
submissions.

63. It was submitted that the minor discrepancies highlighted by the
defence are natural and inconsequential and do not affect the core of
the prosecution case. On a cumulative appreciation of the evidence, it
was submitted that the prosecution has proved every incriminating
circumstance forming the chain of circumstantial evidence, which
points only towards the guilt of the appellants and is wholly
inconsistent with any hypothesis of innocence. The learned Trial
Court, therefore, rightly convicted the appellants under Section 302
read with Section 34 IPC and appellant Shehzad and Rahish Khan
additionally under Section 25 of the Arms Act, warranting no
interference by this Court. It was thus submitted that appeals are
devoid of merit and are therefore liable to be dismissed.

64. In furtherance of his submissions, he relied on a judgment of the

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 21 of 47
PRUTHI
Signing Date:05.08.2026
17:10
Supreme Court in the case of Mohd. Anwar v. the State (NCT of
Delhi), (2020) 7 SCC 391.

Reasoning and Analysis

65. We have considered the arguments advanced by the learned
counsels for the appellants and the learned APP on behalf of the State
and have perused the material on record.

66. There is hardly any dispute with regard to cause of death of the
deceased. PW-1, Dr. Rani Vohra, who examined the victim and
prepared the MLC Report, Ex. PW-1/A, found following injuries on
his person:-

                                      i)     CIW 4 x 1 cm on extensor aspect of left
                                      forearm;
                                      ii)    CIW 4 x 2 cm on lateral aspect of right
                                      upper cheek below the right eye;
                                      iii) CIW 5 x 1 cm on right frontal bone and
                                      part of parietal bone;
                                      iv) CIW 5 x 1 cm on left parietal bone
                                      (front side);
                                      v)     Abrasion 5 x 2 cm on right shoulder.

67. PW-2, Dr. Komal Singh, Chief Medical Officer, DDU Hospital
had conducted the post-mortem on the body of the deceased Nar
Singh. She proved the post-mortem report, Ex. PW-2/A. She deposed
that the cause of death was by closure of mouth by means of foreign
material (may be a cloth piece). She further stated that all the injuries
were ante-mortem and were of the same duration. In cross
examination, she clarified that the cause of death was not due to any
injury caused with blunt object but was because of suffocation.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 22 of 47
PRUTHI
Signing Date:05.08.2026
17:10

68. On the basis of the MLC and the post-mortem report proved on
record, it is established beyond doubt that the death of Nar Singh was
homicidal in nature.

69. Admittedly, there is no eye-witness of the murder of Nar Singh.
The prosecution’s case substantially rests upon the testimonies of PW-
3, Smt. Rekha and PW-9 Smt. Chandra Prabha, who witnessed the
presence of the appellants inside the house immediately before the
discovery of the body of the deceased, as also PW-18 Ajmer Singh, a
tenant in the same house, who saw the appellants fleeing from the
place of occurrence immediately after the incident. The presence of
PW-3 and PW-9, the two wives of the victim, as also the presence of
PW-18 Ajmer Singh, a tenant in the same property, at the place of
occurrence is natural. However, they being the material witnesses,
their testimonies still need to be carefully scrutinized to find out as to
whether they inspire confidence.

70. The case of the appellants Firoz @ Sagar, Shehzad and Sanjay
Kumar is somewhat different from the other three appellants, and
therefore, their case is being dealt with separately.
Case of Firoz @ Sagar, Shehzad & Sanjay Kumar

71. If the prosecution case is to be believed, PW-3 and PW-9 had
seen all the appellants and identified them in court, while PW-18
Ajmer Singh had seen the appellant Rahish Khan amongst 4-5 persons
running in the gali.

72. Admittedly, the names of appellants Firoz @ Sagar, Shehzad
and Sanjay Kumar do not find mention in the statement of Smt.
Chandra Prabha Ex. PW-9/A made to the police. In fact, the names of

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 23 of 47
PRUTHI
Signing Date:05.08.2026
17:10
none of the appellants are mentioned in the said statement. She only
suspected that their newly inducted tenants, who were missing from
their room, and their associates were behind the incident. Even
though, in court, PW-9 identified all the appellants, but when cross-
examined, she admitted that she did not know Shehzad prior to the
incident. She admitted that she had identified Firoz in court, and that
is how she came to know of his name. With regard to the appellant
Sanjay also, she stated that she did not know his name.

73. PW-3 Smt. Rekha also identified all the appellants. However, in
cross-examination, she admitted that she had not seen Firoz before the
incident. She admitted that she had not given the name of Firoz in her
first statement as the person who lifted her son Navneet. She further
stated that she had not told the police that the person holding the knife
was Shehzad.

74. Thus, admittedly, appellant Firoz @ Sagar, Shehzad and Sanjay
Kumar were not known either to PW-3 or PW-9 prior to the
occurrence. Admittedly, they were not caught from the spot and were
arrested after four days.

75. Where the accused is not previously known to the witnesses,
holding TIP at the earliest opportunity is considered desirable. The
object of conducting TIP is to ensure that the witness identifies the
accused from amongst several persons without any prompting. If the
accused are strangers to the witnesses, their dock identification
without prior TIP is not reliable. In Nazim & Ors. v. State of
Uttarakhand, 2025 SCC OnLine SC 2117, the Apex Court explained
that TIP is only part of the investigative process and that the

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 24 of 47
PRUTHI
Signing Date:05.08.2026
17:10
substantive evidence is dock identification; however, where the
accused is a stranger to the witness and no TIP is held, courts must
exercise extreme caution in accepting such identification. The Hon’ble
Court in that case extended the benefit of doubt to the accused,
observing that the accused persons were strangers to the key witness
and that their dock identification, unsupported by any TIP, was
unreliable.

76. The decision of the Supreme Court in Rajesh Govind Jagesha
v. State of Maharashtra, (1999) 8 SCC 428, lays down that the
absence of test identification may not be fatal, if the accused is known
or sufficiently described in the complaint leaving no doubt in the mind
of the court regarding his involvement. Such a parade may not be
necessary in a case where the accused person is arrested on the spot
immediately after the occurrence.

77. However, the facts of the present case stand on a materially
different footing. There is no physical description, identifying features
or other particulars appellants Firoz @ Sagar, Shehzad and Sanjay
Kumar either in the FIR or in the statements of the witnesses recorded
under Section 161 Cr.P.C. Hence, in these facts and circumstances,
the present case does not satisfy the exception carved out in Rajesh
Govind Jagesha (supra).

78. PW-9 Smt. Chandra Prabha stated in her cross-examination that
she had identified the accused persons in court after 3 to 4 days of the
incident, and which date could be 24th September, 1997. According to
her, the accused persons were brought in muffled face, and thereafter,
their faces were uncovered. PW-3 Smt. Rekha also deposed that after

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 25 of 47
PRUTHI
Signing Date:05.08.2026
17:10
3 to 4 days of the incident, she along with her sister Chandra Prabha
and PW-15A Jeth Jeet Singh came to Tis Hazari Court as the police
officials had told that culprits of the case had been arrested and the
police officials also told them that they had to identify the assailants.
According to her, when the five accused persons were produced in
court, they were in muffled face and refused to participate in the Test
Identification Parade. In cross-examination, she deposed that she had
seen the accused Firoz in court premises when they were called for the
identification of the accused. PW-18 Ajmer Singh also confirmed that
on 24th September, 1997, he came at Tis Hazari Court, where he
identified Rahish Khan amongst the five persons, whom he had seen
running away from the spot. He could not identify the other accused
persons nor could tell their names.

79. It is apparent from the testimonies of PW-3, PW-9 and PW-18
that they came to the court on 24th September, 1997 for the
identification of the appellants, and on that day, PW-3 and PW-9
identified all the appellants except Rajesh, who were produced before
the court for TIP.

80. Mr. Rakesh Garg, the then MM (PW-24) deposed that the
application for the TIP of five accused persons namely Nasim, Sanjay,
Firoz @ Sagar, Rahish and Shehzad was assigned to him, being the
link MM, but the application was adjourned to 25th September, 1997
vide order Ex. PW-24/B with direction to the accused persons to keep
their faces muffled for their TIP. He further deposed that on 25th
September, 1997, all the aforesaid accused persons were brought in
muffled face, but they refused to participate in the TIP.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 26 of 47
PRUTHI
Signing Date:05.08.2026
17:10

81. From the testimony of PW-24, it is evident that on 24th
September, 1997, the TIP of the appellants could not be conducted,
and, in fact, it was conducted on 25th September, 1997. However, as
discussed, PW-3, PW-9 and PW-18 had already identified the
appellants on 24th September, 1997, and therefore, conducting the TIP
on 25th September, 1997 was rendered meaningless.

82. Though, the refusal to participate in the TIP may in appropriate
cases permit an adverse inference, such an inference cannot be drawn
where the accused establishes a reasonable apprehension that he had
been exposed to the witnesses prior to the identification proceedings.
The Supreme Court has recently in the case of Raj Kumar alias
Bheema (supra), held as under:

“62. It is trite that where the witnesses have
had an opportunity to see the accused prior to
the holding of the TIP, the evidentiary worth of
such proceedings stands considerably
diminished. It is the duty of the prosecution to
establish beyond doubt that right from the time
of arrest, the accused was kept baparda to rule
out the possibility of his face being seen before
the identification proceedings are conducted.
If the witnesses have had any opportunity to
see the accused before the TIP – whether
physically or through photographs – the
credibility and sanctity of the identification
proceedings would stand seriously
compromised.

xxx

65. In this view of the matter, the prosecution
version that efforts made to subject the
accused to TIP failed on account of their
refusal, stands refuted. While the refusal of the
appellant to participate in the TIP may, prima
facie, invite an adverse inference, mere such
inference cannot support the theory of
identification when the very authenticity of the

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 27 of 47
PRUTHI
Signing Date:05.08.2026
17:10
TIP is under a serious cloud of doubt. When it
stands established from the record that the TIP
attempted by the prosecution was
fundamentally flawed, and a doubt is created
that the identifying witness herself may not
even have been present to participate therein,
the very foundation of the identification
proceedings falls flat to the ground.”

83. PW-3, PW-9 and PW-18, during cross-examination, candidly
admitted that they had seen and identified the accused persons in court
about 3 to 4 days after the incident, that is, on 24th September, 1997.
Such statement lends credence to the appellants’ contention that their
identity had already been revealed before any Test Identification
Parade could be meaningfully conducted. Once the possibility of prior
exposure is established, the very purpose of TIP, namely to test the
memory and veracity of a witness by identifying an unknown offender
at the earliest opportunity, stands substantially diluted.

84. Consequently, the refusal of the appellants to participate in the
TIP cannot be treated as an “adverse circumstance” against them and
any subsequent dock identification would be no identification in the
eyes of law.

85. The prosecution has further relied upon the recoveries effected
from the place of occurrence. PW-12 and PW-14 proved the seizure of
blood-stained bedding, blood-stained clothes, rope pieces, cot
material, copper rings from the spot. These recoveries from the spot
may, at best, establish that a violent incident had occurred inside the
house of the deceased and that various articles were seized during the
investigation, but the prosecution has failed to demonstrate that any of

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 28 of 47
PRUTHI
Signing Date:05.08.2026
17:10
these recoveries specifically connect the appellants with the
commission of the offence.

86. Similarly, the recovery of a knife from the lane outside the
house, also does not materially advance the prosecution’s case. It is
the case of the prosecution that appellant Shehzad was armed with
knife at the time of the occurrence and attributes the knife recovered
from the lane to be the same knife which was used by Shehzad.
However, the evidence reveals that the knife was recovered from an
open place accessible to all, and there is no evidence to show that the
knife bore the blood stains matching the blood group of the deceased
or that it was used in the commission of the offence. The FSL result
(Ex. PB) shows “no reaction” on examination of the knife. Knife was
also not shown to the doctor to confirm that the injuries on the person
of deceased were possible with the said knife. In fact, the
prosecution’s case itself is not that deceased succumbed to any stab
injuries. In the absence of the knife being linked with the commission
of the offence, or with the appellant Shehzad, its recovery from the
lane is of no consequence.

87. Moreover, for applicability of Section 25 of the Arms Act,
possession of the weapon from the accused has to be proved. Hence,
in the absence of recovery of knife from the possession of the
appellant Shehzad, the offence under Section 25 Arms Act is not made
out against him. Since the identity of the appellant Shehzad is not
established, charge under Section 27 of the Arms Act is also not
established.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 29 of 47
PRUTHI
Signing Date:05.08.2026
17:10

88. The prosecution has relied upon the disclosure statement made
by the appellant Rahish Khan and the consequent arrest of appellants
Firoz @ Sagar, Shehzad, Sanjay Kumar and Nasim at his instance. It
is well settled that the disclosure statement made to a police officer is
inadmissible in evidence and can be used only to the limited extent, as
permitted under Section 27 of the Indian Evidence Act. The portion of
the disclosure statement implicating the co-appellants is therefore
inadmissible in evidence and cannot be relied upon as the evidence of
their involvement in the commission of offence.

89. Hence, we are of the view that so far as appellants, namely,
Firoz @ Sagar, Shehzad and Sanjay Kumar are concerned, there is no
evidence whatsoever to hold them guilty of the charges framed against
them.

Case relating to the remaining appellants namely Rajesh Kumar,
Nasim and Rahish Khan

90. Admittedly, no one had seen the assailants committing the
murder of Nar Singh. The prosecution’s case is, therefore, based on
circumstantial evidence, which rests mainly on the testimonies of PW-
3 Smt. Rekha and PW-9 Smt. Chandra Prabha, who witnessed the
presence of the aforesaid appellants inside their house immediately
before the discovery of Nar Singh in an injured condition and
unconscious state.

91. PW-18 Ajmer Singh, another tenant in the house, had witnessed
appellant Rahish Khan fleeing from the place of occurrence along
with his associates after the incident, and had chased them. The
incident took place in the dead of the night at about 2:00 a.m. The

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 30 of 47
PRUTHI
Signing Date:05.08.2026
17:10
presence of PW-3 and PW-9, being the wives of the deceased, and
PW-18, being a tenant residing in the same premises on the ground
floor, at the spot cannot be doubted. The evidence on record
establishes that PW-3 and PW-9 had encountered the intruders inside
the house, while PW-18 saw the assailants escaping from the scene of
crime after the occurrence and identified Rahish Khan as one of them.
Their testimonies are therefore of considerable importance and require
careful scrutiny to determine whether they inspire confidence and
whether the prosecution has succeeded in proving the identity and
involvement of the appellants beyond reasonable doubt.

92. PW-3 Smt. Rekha deposed that on 19th September, 1997 at
about 11:00 or 12:00 noon, while her husband and brother-in-law Jeet
Singh were present in the house, appellants Rajesh and Nasim came to
their house for taking a room on rent. After negotiations, a room at the
back portion of the first floor was rented to them at the rate of Rs.
900/- per month. Nasim paid Rs. 400/- as advance to her husband and
promised to pay the remaining Rs. 500/- later and then both of them
left from there. At about 7:00 or 8:00 pm, they came back and asked
for the key of the room from her. She told them that the room was not
locked and was lying open. Thereafter, both of them went to their
rented room.

93. PW-3 further deposed that her husband went to sleep on the top
of the roof on the first floor. She and her sister slept on their beds in
the gallery at the first floor. Her elder son Navneet was sleeping with
her sister Chandra Prabha and the younger son Divesh was sleeping
with her on her bed. She further deposed that about 2:00 or 2:30 am,

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 31 of 47
PRUTHI
Signing Date:05.08.2026
17:10
she heard the cries of her sister Chandra Prabha, upon which, she
woke up and immediately switched on the light of the gallery and saw
that all the accused persons had overpowered her sister Chandra
Prabha. One of them was having an open knife in his hand, whose
name was Shehzad, one of the accused persons had lifted her son
Navneet. Accused Nasim was pressing the throat of her sister Chandra
Prabha, while the other accused persons had caught hold of her sister.
There were pieces of ropes in the hands of accused persons. On seeing
this, she raised the alarm, and immediately thereafter, other tenants
and neighbours came there and upon seeing them, all the accused
persons jumped in the street from the first floor and then ran away.
She also noticed some blood on the mouth of her sister Chandra
Prabha. Thereafter, they ran to see their husband, who was sleeping on
the top floor of the house at the roof. He was found lying in a room in
the second floor in an unconscious condition. His entire body was tied
to the bed with a rope, in a pool of blood. Police reached at the spot
and took her injured husband to the hospital, where he succumbed to
injuries. She also noticed one cloth bag of black colour containing
some ropes in the gallery. She stated that she had seen that bag on the
shoulder of accused Nasim when he, along with co-accused Rajesh,
had come to their house in the evening at 7:00-8:00 pm. She also
testified about the recovery of knife from the street where the accused
persons had jumped. She further deposed that she knew the accused
Rahish Khan, as he had lived as a tenant in their house for about four
years and had vacated the house about three months before the
incident.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 32 of 47
PRUTHI
Signing Date:05.08.2026
17:10

94. PW-9 Smt. Chandra Prabha also deposed in line with the
testimony of PW-3 Smt. Rekha. She also deposed that at about 12.00
or 1.00 pm, accused Rajesh and Nasim came to their premises to take
room on rent. They paid Rs. 400/- in advance and at about 7.00 or
8.00 pm, they came to occupy the room taken on rent. She further
deposed that at about 2.00 or 2.30 am, someone pressed her. She got
up. Her sister, PW-3 Rekha, also woke up and cried loudly. Appellant
Nasim had pressed her mouth and Rajesh had pressed her legs. She
further stated that PW-3 Rekha told her that accused Firoz had picked
up the elder son Navneet. Appellant Shehzad had an open knife in his
hand. She further stated that accused Sanjay had a rope in his hand at
the time of the incident. Appellant Rahish, who had earlier been their
tenants for four years and had vacated the room 2-3 months prior to
the incident, was also standing there. She further stated that her sister
switched on the light and raised alarm, on which, the other tenants in
the property had also come. The appellants then jumped into the gali.
She further stated that Ajmer and Ansar were amongst the other
tenants, who reached there. PW-9 further deposed that her husband
was not on the cot on which he used to sleep and was found in a pool
of blood in a room, where he was lying tied with ropes. Someone then
rang up the police. The PCR van came at the spot and recorded her
statement Ex. PW-9/A. According to her, appellants Rajesh and
Nasim were not present in their room after the incident.

95. PW-18 Ajmer Singh deposed that on 19th September, 1997 at
about 1.00 or 2.00 am in the night, on hearing the noise “Maar Diya,
Maar Diya”, he woke up and heard the sound of somebody jumping.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 33 of 47
PRUTHI
Signing Date:05.08.2026
17:10

He opened the door, which opens towards the main gali and on
coming out, he saw 4-5 persons running in the gali. One of them was
limping and was being taken away by providing support. He identified
Rahish Khan, who was also a tenant in the same house. He called him,
on which, he threatened him by showing knife and asked him to stop.
He immediately raised alarm. While he was coming back after chasing
them, he saw an open knife lying near the gate. Upon going at the top
floor, he saw Nar Singh lying in a pool of blood. He stated that the
deceased Nar Singh was later removed to DDU Hospital in the PCR
van.

96. PW-15A Jeet Singh is the brother of deceased Nar Singh. He
deposed that on 19th September, 1997, he had gone to visit the house
of his brother Nar Singh and at about 12.00 noon or 1.00 pm while he,
Nar Singh and his wife Rekha (PW-3) were sitting and talking in a
room on the ground floor of the house, accused Rajesh and Nasim
came there for taking a room on rent. The rent was settled at Rs. 900/-
per month, out of which, they had paid Rs. 400/- as advance, assuring
that the balance of Rs. 500/- will be given in the evening, the same
day. Thereafter, they left saying that they will come in the evening.

97. The aforesaid witnesses were cross-examined at length by the
respective learned counsels appearing for the appellants. There is not
even a whisper of suggestion that the witnesses had any inimical
relations with the appellants. No previous enmity or ill-will has been
established to show that the witnesses had any motive to falsely
implicate them. There is no reason why PW-3, PW-9 and PW-15A
would falsely implicate innocent persons and let go the real culprits.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 34 of 47
PRUTHI
Signing Date:05.08.2026
17:10

There is no reason to disbelieve the testimonies of the aforesaid
witnesses.

98. The defence has assailed the testimony of PW-3 on the ground
that she did not name the appellant Rahish Khan in her statement
recorded under Section 161 Cr.P.C. It was argued that if she had seen
Rahish Khan at the spot, she would have named him in her statement
under Section 161 Cr.P.C. before the police. In her cross-examination,
PW-3 stated that she had told the names of two accused persons in her
statement and had given the description of the other accused. She
further stated that she had named Rahish Khan before the police and
denied the suggestion that she has deposed falsely about Rahish Khan.
She was not confronted with her previous statement under Section 161
Cr.P.C. to show that Rahish Khan was initially not named in the said
statement. Statement recorded under Section 161 Cr.P.C. is not a
substantive evidence and can be used only for the limited purpose of
contradiction after strict compliance of Section 145 of the Indian
Evidence Act. The Hon’ble Supreme Court in the case of V.K. Mishra
and Another v. State of Uttarakhand and Another, (2015) 9 SCC
588, reiterated that the Court cannot suo motu make use of statements
to police not proved and ask questions with reference to them which
are inconsistent with the testimony of the witness in the court. The
Hon’ble Court observed that the words in Section 162 Cr.P.C. “if duly
proved” clearly show that the record of the statement of witnesses
cannot be admitted in evidence straightaway nor can be looked into
but they must be duly proved for the purpose of contradiction by
eliciting admission from the witness during cross-examination and

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 35 of 47
PRUTHI
Signing Date:05.08.2026
17:10
also during the cross-examination of the Investigating Officer. The
said principle was recently reaffirmed in Alauddin & Ors. v. State of
Assam & Anr., (2024) 12 SCC 224, wherein, the Hon’ble Supreme
Court, while referring to the landmark decision in Tahsildar Singh &
Anr. v. State of U.P., 1959 SCC OnLine SC 17, held that the
contradictory portion of the previous statement must be specifically
shown to the witness to afford him an opportunity to explain the
alleged inconsistency and only upon such confrontation and proof can
the contradictions be treated as proved. The Court further observed
that this requirement is a rule of fairness and forms an indispensable
safeguard in criminal trials.

99. Thus, only if the contradictory part of the previous statement is
proved, the contradictions can be said to be proved, which has not
been done in the present case. The defence, in the present case, has
thus failed to establish that PW-3 by naming Rahish Khan as one of
the intruders, has in any manner made improvement from her previous
statement recorded under Section 161 Cr.P.C.

100. Admittedly, PW-9 Smt. Chandra Prabha also in her statement
Ex. PW-9/A did not name any of the intruders, including Rajesh,
Nasim and Rahish. She only stated that she suspected about the
involvement of the newly inducted tenants, who were missing from
the premises. The defence contention has been that if she knew
Rajesh, Nasim and Rahish prior to the occurrence, there was no reason
why their names were not mentioned in the statement Ex. PW-9/A.

101. We do not find merit in the said contention. So far as appellants
Rajesh and Nasim are concerned, PW-9 had not seen them at 12:00

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 36 of 47
PRUTHI
Signing Date:05.08.2026
17:10
noon or 1:00 pm when they first came for taking the room on rent or
even in the night when they occupied the room. Even, PW-3 Smt.
Rekha and PW-15 Jeet Singh have not deposed about the presence of
PW-9 Smt. Chandra Prabha at the time of letting out the room or even
at the time when Rajesh and Nasim came in the night to occupy the
room. In her cross-examination, PW-9 clarified that her sister had seen
Rajesh when they had come for taking the room on rent. This explains
why the names of Rajesh and Nasim were not mentioned by PW-9 in
her statement Ex. PW-9/A.

102. Admittedly, the name of Rahish Khan also does not figure in
the statement Ex. PW-9/A. In her cross-examination, PW-9 clarified
that at the time of incident, PW-18 Ajmer Singh did not say anything
to her, but later told her that he had seen Rahish jumping. It is thus
clear that PW-9 had not noticed the presence of Rahish Khan at the
place of incident and her testimony before the court, naming him as
one of the assailants, is based on the information provided to her by
Ajmer Singh.

103. The defence has harped much on certain improvements and
inconsistencies in the testimonies of the witnesses. In her
examination-in-chief, PW-3 deposed that after she raised alarm by
shouting “Chor-Chor”, the accused persons remained inside the house
until the neighbours and tenants reached the spot and fled only
thereafter. However, in her cross-examination, she categorically
admitted that by the time the tenants came out of their rooms, the
accused had already escaped. Likewise, in her statement under Section
161 Cr.P.C., she remained silent regarding Nasim carrying a black

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 37 of 47
PRUTHI
Signing Date:05.08.2026
17:10
cloth bag on his shoulder, but in her testimony before the court, she
deposed about the same to connect Nasim with the alleged recovery of
ropes. Similarly, some other facts deposed during trial, including the
assertion that Nasim and Rajesh demanded the keys of the room; that
electricity had returned before they went to sleep; that Nasim had
switched off the light of the rented room; that Shehzad was the person
carrying the knife; that she opened the lock of the channel and that the
accused fled only after the neighbours reached, are absent from
earliest version recorded by the police. Similarly, the testimony of
PW-9 was assailed on the ground that introduction of certain
incriminating facts at different stages of the proceedings by her, reveal
a pattern of embellishment and improvements, rendering her evidence
unsafe to rely upon without independent corroboration.

104. It is important to take note that PW-3 and PW-9 were the
witnesses to a gruesome intrusion and attack by the intruders in their
house. The incident occurred in the dead of the night, when the
witnesses were suddenly awakened from the sleep, they were
overpowered by multiple assailants, armed with deadly weapons and
immediately thereafter, they discovered Nar Singh in a grievously
injured condition. In the said incident, PW-9 was herself also attacked
by the intruders. Both these witnesses were in a state of shock. The
human conduct and faculties differ from person to person. The learned
Trial Court rightly observed that in such a situation, normal errors of
observation, due to mental disposition and lapse of time were bound to
occur, and therefore, such normal errors of observations cannot be
termed as “material discrepancies”. Considering the state of mind in

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 38 of 47
PRUTHI
Signing Date:05.08.2026
17:10
which the witnesses were at the time of recording of their statements,
the inconsistencies/improvements are normal and bound to be there,
howsoever truthful the witness may be, and therefore, cannot be given
undue importance. The minor omissions or improvements arising
from the normal fallibility of human memory or the effect of trauma
cannot be elevated to the status of material contradictions or
omissions, so as to discard the otherwise reliable testimony. In State
of H.P. v. Hukum Chand alias Monu, 2026 SCC OnLine SC 462, the
Supreme Court, inter alia, observed as under:-

“8. When it comes to inconsistencies and
omissions in testimonies, which is one of the
primary grounds on which the reasoning of the
High Court rests, it is well recognised that
human perception, memory and narration are
imperfect. As such, the Court has consistently
held that minor inconsistencies or trivial
discrepancies in the testimony of witnesses do
not by themselves make the evidence
unreliable. In State of U.P. v. M.K. Anthony,
this Court explained that while appreciating
evidence, courts must not attach undue
importance to minor discrepancies. Variations
in trivial matters that do not affect the core of
the case should not lead to rejection of
credible testimony in its entirety. The evidence
must be assessed as a whole to determine
whether it carries the ring of truth. Similarly,
in Appabhai v. State of Gujarat, the Court
cautioned against placing undue weight on
minor contradictions or omissions. Truthful
witnesses may differ in detail due to normal
lapses of memory or differences in perception.
The essential question is whether the
inconsistencies materially compromise the
backbone of the prosecution narrative. In State
of Rajasthan v. Kalki, the Court distinguished
between normal discrepancies arising from
errors of observation or memory and material

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 39 of 47
PRUTHI
Signing Date:05.08.2026
17:10
discrepancies that go to the core of the case.
Only the latter undermine the prosecution in a
substantial manner. [See also: Rakesh v. State
of Uttar Pradesh]
In conclusion, it may be said that a truthful
witness may make honest mistakes or omit
immaterial details, and such normal variation
should not result in wholesale rejection of
evidence. However, when omissions or
contradictions relate to material facts that
form the foundation of the prosecution’s
version, they assume significance and may
create reasonable doubt.”

105. Admittedly, there is no rent agreement or rent receipt to prove
that appellants Rajesh and Nasim were inducted as tenants in the
house of the deceased. Even in her cross-examination, PW-3 stated
that no rent receipt was issued to appellants Nasim and Rajesh at the
time of letting out of the room. However, the testimony of PW-3 finds
corroboration from the testimony of PW-15A Jeet Singh, in whose
presence, the deal was struck and advance was paid by the appellants
Rajesh and Nasim to the deceased. Oral tenancies are not unknown
where the landlords do not execute rent agreements with the tenants
and do not even issue rent receipts to them. Therefore, the testimonies
of the witnesses cannot be disbelieved merely because there is no
documentary proof of tenancy.

106. In her cross-examination, PW-3 Smt. Rekha corroborated the
presence of PW-18 Ajmer Singh, who reached at the spot immediately
after the occurrence. PW-18 Ajmer Singh in his testimony, identified
the appellant Rahish Khan amongst 4-5 persons, running in the gali.
There is no cross-examination, not even a suggestion given to PW-18

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 40 of 47
PRUTHI
Signing Date:05.08.2026
17:10
that appellant Rahish was not seen by him in the gali. Thus, the
presence of Rahish Khan in the gali with knife is not even disputed by
him. The presence of Rahish Khan with open knife near the place of
occurrence at 2:00 am, leads to inference of his involvement in the
incident.

107. Prosecution is also placing reliance on the alleged dying
declaration made by Nar Singh. To prove the same, prosecution relies
on the testimony of PW-18 Ajmer Singh and PW-11 HC Ishwar
Singh. PW-11 HC Ishwar Singh had removed Nar Singh to DDU
Hospital in the PCR van where he was declared “brought dead”. PW-
18 Ajmer Singh deposed that he had accompanied HC Ishwar Singh in
the PCR van. Both of them deposed that on the way, Nar Singh stated
before them that he was assaulted by Rahish Khan, his two new
tenants, besides their 2 or 3 associates. It is significant to note that Nar
Singh, on reaching the hospital, was declared “brought dead” and PW-
3 Smt. Rekha in her cross-examination, had stated that she knew that
her husband was dead before he was taken in the PCR van, thus
creating a doubt as to whether Nar Singh was really alive on the way
to the hospital. Be that as it may, the learned Trial Court rightly
observed that it was for the prosecution to prove that deceased was in
a fit state of mind to make a statement. In order to pass the test of
reliability, the dying declaration has to be subjected to a very close
scrutiny because such statement is made in the absence of the accused,
who had no opportunity of testing the veracity of the statement by
cross-examination. Only when the dying declaration is found to be

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 41 of 47
PRUTHI
Signing Date:05.08.2026
17:10
truthful and reliable, it may form the sole basis of conviction, even
though, not corroborated.

108. Admittedly, in the present case, the doctor had no opportunity
to examine Nar Singh and confirm whether he was in a fit state of
mind to make such statement.

109. Moreover, there are contradictions in the testimonies of PW-11
HC Ishwar Singh and PW-18 Ajmer Singh on material points. HC
Ishwar Singh deposed that Nar Singh murmured and told them to take
him to hospital immediately as he was hit by Amir Khan, again said,
Rahish Khan and two other persons, who were tenants, besides their 2
or 3 associates. However, PW-18 Ajmer Singh testified that Nar Singh
stated that he was being killed by Rahish Khan and his associates,
who were three in number besides two new tenants in the house. PW-
18 deposed that Nar Singh had shouted in the van “Maar Diya, Maar
Diya”, but this fact is not stated by PW-11 HC Ishwar Singh. Thus,
there are contradictions in the testimonies of PW-11 and PW-18 with
regard to the statement made by Nar Singh, which is being relied upon
as a dying declaration by the prosecution.

110. As per post-mortem report Ex. PW-2/A, Nar Singh had expired
due to suffocation caused by closure of mouth by means of foreign
material (may be a cloth piece). Since the death was by suffocation
due to closure of mouth, the same would rule out the possibility that
Nar Singh was alive while being taken to the hospital in the PCR van.
That being so, we are of the opinion that the alleged dying declaration
is not believable, and is therefore discarded from consideration.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 42 of 47
PRUTHI
Signing Date:05.08.2026
17:10

111. Prosecution is also relying upon the testimony of PW-22 Ms.
R.S. Nag, the then MM, before whom, the IO had filed an application
for extension of judicial remand. She testified that on 24th September,
1997, all the five accused persons namely Nasim, Sanjay, Firoz,
Rahish Khan and Shehzad were produced before her. She asked them
as to why they were brought before her, upon which, accused Nasim
stated that he along with others had gone to Kavita Colony where
Ramesh was killed by knife injury inflicted by Rahish. Rahish, on
examination, voluntarily stated that their intention was not to commit
murder but to commit theft, but when Ramesh woke up, the incident
happened. Ms. Nag deposed that all the accused except Shehzad
admitted whatever Nasim and Rahish had stated. Shehzad stated that
he was caught from the house, but the other accused maintained that
he was along with them.

112. The learned APP has argued that such statement made before
the learned Metropolitan Magistrate should be considered as a judicial
confession. However, we find no merit in such submission. The
procedure for recording the judicial confession is provided in Section
164 Cr.P.C. PW-22 did not depose that she had put any question to the
appellants to satisfy herself that the confessional statement was being
made voluntarily. She did not depose that she had explained to the
accused persons that they were not bound to make such confession.
She had not appended her certificate in terms of sub Section (4) of
Section 164 of the Cr.P.C. underneath the said confessional statement.
The accused were not even administered oath before taking their
statements. Under these circumstances, the statement recorded by PW-

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 43 of 47
PRUTHI
Signing Date:05.08.2026
17:10

22 cannot be treated as a confessional statement of the appellants, and
therefore, the learned Trial Court had rightly not placed any reliance
on such a statement. Such statement can also not be treated as an
extra-judicial confession, inasmuch as, the statement was given during
the course of judicial proceedings before a Magistrate.

113. Furthermore, in their statements recorded under Section 313
Cr.P.C., the appellants Rahish Khan, Rajesh and Nasim were only
questioned about Ex. PW-22/A. The incriminating contents of the
statement, were not put to them. Consequently, the said statement
could not be used as an incriminating circumstance against them, as
they were deprived of an opportunity to explain the same. In Sujit
Biswas v. State of Assam, (2013) 12 SCC 406, the Supreme Court
held that the circumstances which are not put to the accused in his
examination under Section 313 Cr.P.C. cannot be used against him
and must be excluded from consideration.

114. The Hon’ble Supreme Court in Aejaz Ahmad Sheikh v. State of
Uttar Pradesh & Anr., 2025 SCC OnLine SC 913, while referring to
its previous decision in Raj Kumar v. State (NCT of Delhi) (2023) 17
SCC 95, inter alia, held as under:-

“22. The prosecution has heavily relied upon
the dying declarations of the two victims. As
this evidence was not put to the accused in his
statement under Section 313 of the CrPC, he
was denied an opportunity to explain the same.
Hence, this omission causes prejudice to him.
Therefore, the evidence of dying declaration
will have to be kept out of consideration.”

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 44 of 47
PRUTHI
Signing Date:05.08.2026
17:10

115. On the basis of the evidence, it has emerged that PW-3 and PW-
9 unequivocally stated that appellants Rajesh and Nasim approached
the deceased Nar Singh on the pretext of taking room on rent, had
negotiated the rent, paid Rs. 400/- as advance rent and occupied the
room in the evening, the same day. This aspect remained substantially
unshaken throughout the examination and cross-examination. The
identity of appellants Rajesh and Nasim has been proved beyond
doubt. PW-18 Ajmer Singh unequivocally established the presence of
appellant Rahish Khan immediately after the commission of offence,
when he saw Rahish fleeing from the spot with an open knife along
with other assailants. All three of them were known to the witnesses
since prior to the occurrence. The aforesaid circumstances proved on
record establish the guilt of the appellants Nasim, Rajesh and Rahish
Khan and are conclusive in nature and consistent only with the
hypothesis of their guilt. The chain of evidence is so complete that it
does not leave any reasonable ground for a belief consistent with the
innocence of the appellants.

116. We are therefore of the view that it were the appellants Nasim,
Rajesh and Rahish Khan who had caused the death of Nar Singh.

117. The next question to be decided is whether the proved facts
established the offence of murder punishable under Section 302 IPC.
The prosecution has attributed the motive that the appellants had
entered the house with an intention of committing robbery.
Undoubtedly, it is proved that the appellants Rajesh and Nasim had
gained entry into the house under the guise of prospective tenants only
a few hours before the occurrence. The evidence of PW-3 and PW-9

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 45 of 47
PRUTHI
Signing Date:05.08.2026
17:10
shows that the intruders had entered the house during the night and
attempted to overpower the family members.

118. Though, the death was undoubtedly homicidal in nature, the
medical evidence does not indicate any fatal injury caused by the
knife. It is borne from the evidence that appellants were armed with
knives. If they had intended to kill Nar Singh, they would have easily
stabbed him to death, and had not taken the pain to gag him, tie his
limbs with ropes, stab him and then suffocate him with foreign
material to cause his death. It appears that the appellants only wanted
to ensure that the deceased should not raise any hue and cry. It is a
clear case of attempted robbery gone wrong and the homicidal death
was incidental to the commission of intended robbery. There is no
evidence on record that appellants had any previous enmity or ill-will
with the deceased, or that due to such reason, they intruded in the
house to kill him. That being so, we are of the opinion that
prosecution has failed to establish the charge under Section 302 IPC
against the appellants but they are held guilty of culpable homicide,
not amounting to murder under Section 304 Part-II IPC.

Conclusion:

119. The impugned judgment of conviction dated 12th July, 2002 and
order on sentence 18th July, 2002 qua the appellants Firoz @ Sagar,
Shehzad and Sanjay Kumar are set aside. Their bail bonds shall
remain valid for a period of six months in terms of Section 481 BNSS,
2023 [erstwhile Section 437-A Cr.P.C.]. CRL. A. 609/2002, CRL.A.
662/2002 and CRL.A. 814/2002 are, accordingly, disposed of.

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 46 of 47
PRUTHI
Signing Date:05.08.2026
17:10

120. As far as CRL. A. 949/2002, CRL.A. 127/2003 and CRL.A.
451/2004 are concerned, the conviction of appellants Rajesh Kumar,
Nasim @ Sagar and Rahish Khan under Section 302/34 IPC is
modified to one under Section 304 Part-II IPC read with Section 34
IPC, while the conviction of appellant Rahish Khan under Section 25
Arms Act is maintained.

121. List on 02.09.2026, for arguments on the point of quantum of
sentence.

122. The fresh Nominal Roll of the appellants namely Rajesh
Kumar, Nasim @ Sagar and Rahish Khan be requisitioned from the
Jail Superintendent.

RAVINDER DUDEJA, J.

NAVIN CHAWLA, J.

AUGUST 05, 2026/NA/AK

Signature Not Verified
Signed By:VAISHALICRL.A. 609/2002 and connected matters Page 47 of 47
PRUTHI
Signing Date:05.08.2026
17:10

Source link

Welcome to Airr News

Welcome to Airr News

Forever

Recommended

1-Year

1-Month

Welcome to Airr News

Forever

Recommended

1-Year

1-Month

Welcome to Airr News

Firoz @ Sagar vs State on 5 August, 2026

Delhi High Court