Delhi High Court
Mohd Talha & Ors vs The State Nct Of Delhi on 23 April, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 15.04.2026
Judgment pronounced on: 23.04.2026
+ CRL.A. 1001/2017
MOHD TALHA & ORS .....Appellants
Through: Mr. Mehmood Pracha, Mr. Sanawar,
Mr. Kshitij Singh, Ms. Nujhat, Mr.
Sikander, Advocates.
versus
THE STATE NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Ankita, P.S. Mehrauli. Mr. Harsh
Ahuja, Mr. Ajay Chowdhary, Mr.
Mukul Singh, Advocates for R-2 & 3
with Respondents person.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 (the Cr.P.C), the accused persons,
namely, the first accused (A1), the second accused (A2), the third
accused (A3) and the fourth accused (A4) in Sessions Case No.
6987/2016 on the file of the Additional Sessions Judge, South
District, District Court Saket, New Delhi, assail the judgment
dated 27.09.2017 and order on sentence dated 11.10.2017 as per
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which they have been convicted and sentenced for the offence
punishable under Section 308 read with Section 34 of the Indian
Penal Code, 1860 (the IPC). The rank of accused persons are
referred to as arrayed in the chargesheet/ final report.
2. The prosecution case as per the chargesheet/ final
report is that on 31.12.2011, at about 01:30 PM., A1 to A4, along
with one Umer (the CCL) in furtherance of their common
intention, caused injuries using deadly weapons, to PW1 and PW2
with such intention and under such circumstances that, had death
been caused, they would have been guilty of murder, thereby
committing an offence punishable under Section 307 read with
Section 34 IPC.
3. On the basis of Ext. PW1/A FIS/FIR of PW1, given on
31.12.2011, Crime no. 1/2012, Mehrauli Police Station, that is,
Ext. PW7/B FIR was registered by PW7, Head Constable (HC).
PW17, Sub-Inspector, conducted investigation into the crime and
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on completion of the same filed the charge-sheet/final report
alleging commission of the aforesaid offence.
4. When the accused persons were produced before the
trial court, all the copies of the prosecution records were furnished
to them as contemplated under Section 207 Cr.PC. Thereafter, in
compliance of Section 209 Cr.P.C, the case was committed to the
Court of Session concerned. On appearance of A1 to A4 and after
hearing both sides, the trial court as per order dated 16.04.2012,
framed a Charge under Section 307 read with Section 34 IPC,
which was read over and explained to them, to which they pleaded
not guilty. On the same date, Meherban Ali, father of A1 and A4
shown in Colum 12 of the final report/ Charge sheet was
discharged by the trial court.
5. On behalf of the prosecution, PWs. 1 to 17 were
examined and Ext. Ex. PW1/A-B, PW3/A-B, PW5/A-B, PW6/A,
A1-A2, B1-B2, C1-C2, D, E, F1-F3, G, PW7/A-B, PW12/A,
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PW15/A-E, PW16/A-B, PW17/A-B,CW1/A-C, Mark A, B, X, Y,
XX were marked.
6. After the close of the prosecution evidence, A1 to A4
were questioned under Section 313(1)(b) Cr.PC regarding the
incriminating circumstances appearing against them in the
evidence of the prosecution. A1 to A4 denied all those
circumstances and maintained their innocence. It was submitted by
A1 that on 31.12.2011 at about 01:20-01:30 PM, while he was
standing in front of his house, he saw PW1 and PW2 quarrelling
with his cousins, namely, Sultan (A2) and Suhail (A3). When he
tried to intervene, PW2 caught hold of him and PW1 attacked him
with a knife on the upper part of his body. He attempted to save
himself by bending backwards. The knife pierced through his right
hand from near his elbow. The wound started bleeding. Members
of the public present apprehended PW1 and PW2 and started
beating them by throwing them on the ground. A PCR call was
made by his cousin, Sultan (A2). He was then taken to the AIIMS
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trauma centre by his aunt for medical examination, where his
statement was recorded by the police. A1 also submitted that FIR
No. 02/2012 dated 01.01.2012, Mehrauli police station has been
registered against PW1 and PW2. A2 to A4 gave the same version
as submitted by A1.
7. After questioning A1 to A4 under Section. 313(1)(b)
Cr.P.C., compliance of Section 232 Cr.P.C. was mandatory. In the
case on hand, no hearing as contemplated under Section 232
Cr.P.C. is seen done by the trial court. However, noncompliance of
the said provision does not, ipso facto vitiate the proceedings,
unless omission to comply with the same is shown to have resulted
in serious and substantial prejudice to the accused (See Moidu K.
vs. State of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker
2888). Here, the accused persons have no case that non-
compliance of Section 232 Cr.P.C has caused any prejudice to
them.
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8. On behalf of the accused persons, DW1 was examined.
Ext. DW1/A1 to DW1/A6 were marked in support of the defence.
9. Upon consideration of the oral and documentary
evidence on record and after hearing both sides, the trial court,
vide the impugned judgment dated 27.09.2017, found A1 to A4,
guilty of the offence punishable under Section 308 read with
Section 34 IPC. Accordingly, vide order on sentence dated
11.10.2017, they have been sentenced to undergo rigorous
imprisonment for a period of 3 years and to pay a fine of
₹1,00,000/- each, and in default of payment of fine, to undergo
simple imprisonment for a period of 3 months each. Aggrieved, A1
to A4 have come up in appeal.
10. The learned counsel for A1 to A4 submitted that the
case dairy (CD) prepared by the police during the course of
investigation as contemplated under Section 172 CrPC needs to be
examined, as a perusal of the same would reveal that the
investigation conducted by the prosecution was defective, biased
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and manipulated in a manner so as to implicate A1 to A4.
Referring to Rule 25.56 (1) of the Punjab Police Rules, 1934 (the
Rules) applicable in Delhi also, it was submitted that each page of
the CD is required to be signed by the Magistrate concerned. It is
apparent that the Rules require the production of the entire CD
before the Magistrate concerned and an obligation cast upon the
Magistrate to sign or initial each page of the CD. This apparently
has not been done in this case. Hence, there was every possibility
of interpolations and manipulations of the CD including in the
Section 161 statement of the witnesses. The fact that the Section
161 statements have been manipulated is clear from the testimony
of PW1 and PW2, who tried to make improvements in the case.
Therefore, it was submitted that to comprehend the actual facts, it
is necessary for the Court to call for the CD and peruse the same.
Reliance was placed on the dictum in Rakesh v. State, 2010 SCC
Online Del 2119 in support of the argument.
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10.1. The learned counsel for A1 to A4 further submitted that
as deposed by PW1 and PW2, there is no proof of an injury having
been caused by a danda or an iron rod. On the contrary, the
medical evidence reflects that the injuries were the result of stone
blows, which supports the defense version that PW1 and PW2
were apprehended and beaten by the members of the public. The
learned counsel for A1 to A4 also questioned the circumstances
surrounding the shifting of PW2 from the trauma centre, AIIMS to
Apollo Hospital, New Delhi. This shifting was done to manipulate
and create records to support the prosecution case. It was also
pointed out that there was a delay of seven days in signing the
MLC by PW14, the doctor who is alleged to have examined the
injured in this case, which again raises doubts. It was submitted
that the witnesses examined by the prosecution are not trustworthy
and lack credibility in as much as there exists prior animosity
between A1 to A4 and PW1 and PW2, which cast doubt on the
veracity of the testimony. None of the family members present at
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the time of the incident nor have any independent public witnesses
been examined to corroborate the case of PW1 and PW2.
10.2. It was further submitted that the chain of custody of the
material objects or the case property has not been properly
established. This aspect will be clear on an inspection of the
material objects and hence it is necessary for this Court to call for
the material objects, that is, Exts. PW6/G, PW2/A, PW17/A,
PW6/E as well as Ext. P3, iron rod. An examination of the material
objects would show that there are no blood stains on them. It was
also submitted that the role of one of the assailants, namely,
Meharban Ali, who, according to PW2, is also alleged to have
taken part in the attack, has not been referred to at all in the
impugned judgment, which is an infirmity committed by the trial
court. The discharge of one of the persons alleged to be involved
in the attack also affects the credibility and reliability of PW1 and
PW2. The learned counsel further questioned the MLCs, prepared
in respect of PW1 and PW2, contending that the same are
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incomplete and had chances of manipulation, particularly in view
of the admissions made by PW14, the doctor, that the MLCs were
not signed by him on 31.12.2011, but on a later date. It was further
submitted that no explanation has been furnished for the delay of
about 10 hours in lodging the FIR, which casts further doubt on the
prosecution story. The clothes allegedly worn by PW1 and PW2 at
the time of the incident were recovered after an inordinate delay of
54 days. The trial court failed to appreciate that Ext. PW3/A DD
no. 15A, regarding the quarrel that took place between PW1 and
PW2 and A1 and A2 was recorded pursuant to a PCR call made at
01:45 PM from the phone of A3 whereas Ext. PW3/A DD No.
19B, pertaining to the alleged incident of stabbing in this case, was
recorded pursuant to a PCR call made at 01:55 pm from the phone
of A2. Despite the police being informed of the quarrel at an
earlier point of time, the police without registering a crime went on
to register the present crime about which information was received
subsequently. The FIR against PW1 and PW2 for assaulting A1
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was registered only thereafter, which is another aspect which
shows that the investigation was biased and everything was done
to help PW1 and PW2. It was also submitted that permission to
produce additional evidence may be granted, which would show
that it was actually A1 who was injured in the attack by PW1 and
PW2.
10.3. Per contra, the learned Additional Public Prosecutor
(APP) submitted that the CD can be called for or looked into only
for the purpose stated in Section 172(3) Cr.P.C. and not for any
other purpose. It was further submitted that no objection or
allegation regarding any manipulation or interpolation of the CD
or defects or illegalities in investigation had been raised before the
trial court and hence the same cannot be raised at the appellate
stage. No material to substantiate any case of injury being caused
to A1 has been brought on record and so the defence version
cannot be believed. The absence of independent witnesses is no
reason to disbelieve the version of PW1 and PW2. It was further
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submitted by the APP that it is a settled position of law that the
testimony of an injured witness carries great evidentiary value and
ordinarily commands a higher degree of reliability. The allegation
of delay in lodging the FIR is devoid of merit, as both the victims
were injured and PW2 had sustained grievous injuries as reflected
in the MLC. In such circumstances, it was natural and reasonable
to first secure immediate medical treatment before approaching the
police for registration of the FIR. The learned APP further
submitted that no allegation regarding any defect in the chain of
custody of the material objects had been raised before the trial
court. The same has been urged for the first time at the appellate
stage and hence liable to be entertained. It was further submitted
that Meherban Ali mentioned in Column No. 12 of the chargesheet
as a suspect, was discharged by the trial court by order dated
16.04.2012 on the ground that there was no sufficient material to
proceed against him. Hence, no infirmity has been committed by
the trial court in not referring to him in the impugned judgment. It
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was contended that, in contrast, the involvement of A1 to A4
stands duly established from the materials on record. Therefore, no
parity can be claimed by them on the basis of the discharge of the
aforesaid person. There is no infirmity in the impugned judgment
calling for an interference by this Court, argued the prosecutor.
11. Heard both sides and perused the materials on record.
12. I shall briefly refer to the evidence on record relied on
by the prosecution in support of the case. In Ext. PW1/A FIS/FIR
of PW1, recorded on 31.12.2011, it is stated thus: “Today, on
31.12.2011 at around 1:30 PM, when I was at my home, I heard a
commotion outside. When I stepped out of my house, I saw that my
younger brother Haneef (PW2) was being assaulted and beaten by
my neighbors Suhail (A3), Sultan (A2), and Umer (CCL) (who are
the sons of Yameen Ali), along with Talha (A1) and Zubair (A4)
(who are the sons of Meharban Ali). All of them were fighting and
beating up my brother Haneef (PW2). Talha (A1) had a wooden
stick in his hand, and Suhail (A3) had an iron rod in his hand.
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When I tried to intervene and save my brother, they started
fighting and beating me up as well. Suhail (A3) struck my brother
Haneef (PW2) on the head with the rod, due to which he sustained
a head injury and fell down. Furthermore, Talha (A1) struck me
with the stick, causing injuries to several parts of my body. Seeing
the incident, people from the neighborhood gathered around, and
then all of them [the accused persons] ran away. Somebody
informed the police. A PCR van arrived at the spot and brought me
and my brother Haneef (PW2) to the hospital. I and my brother
Haneef (PW2) have been injured by Suhail (A2), Sultan (A3),
Umer (CCL), Talha (A1), and Zubair (A4) with whom our family
has had a pre-existing dispute. They have injured both of us
brothers. Legal action should be taken against all of them…”
13. PW1, when examined before the trial court, deposed
that he knows A1 to A4, as they are his neighbours. On 31.12.2011
at about 01:30 PM, while he was at home, he heard a commotion.
When he came outside, he saw his brother (PW2) being beaten by
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A1 to A4 and Umer (the CCL). Suhail (A3) was armed with an
iron rod and Talha (A1) was carrying a danda. PW2 was beaten
with the iron rod and danda. When he tried to intervene to save his
brother, A1 to A4 beat him as well. Talha (A1) inflicted danda
blows on his head and other parts of his body, due to which he
sustained bleeding injuries, which required 28 stitches. PW2
sustained injury on his head due to the attack made by Suhail (A3)
with the iron rod. PW1 further deposed that someone from the
neighbourhood informed the police, following which a PCR van
arrived and took them to the Trauma Centre. His statement was
recorded by the police, that is, Ext. PW1/A. PW1 identified the
dress he was wearing at the relevant point of time which has been
marked as Ext. P1 (collectively).
13.1. PW1, in his cross examination, admitted that he is an
accused in a case filed by one Nikhat Gul alleging commission of
the offence punishable under Section 308 IPC. PW1 denied the
suggestion that he had stabbed A1 with a knife on 31.12.2011 at
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02:30 PM in front of the parking near premises no. 31/1, ward no.
1, Mehrauli and had caused an injury on his right arm, at which
time PW2 was also present. He denied that Talha (A1) on being
stabbed had raised alarm, pursuant to which many mohalla people
had gathered at the spot. According to PW1, it was he who had
raised alarm when his brother was stabbed. PW1 was unable to say
as to who had informed the police or whether A3 had informed the
police. PW1 denied the suggestion that he and his brother had
attacked Talha (A1), at which time many mohalla people had
gathered at the spot or that when the mohalla people intervened in
the quarrel, he had fled from the spot while PW2, his brother, was
caught by mohalla people at the spot. PW1 also denied the
suggestion that he and PW2 had sustained injuries after the
intervention of the mohalla people or that they had sustained
injuries while fleeing the spot. According to PW1, both of them
had sustained injuries in the quarrel that occurred and that no
mohalla people had intervened. The PCR had reached the spot
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within about 10 minutes and the PCR officials had taken them to
the trauma centre within about 20 minutes. The local police
reached the Trauma Centre within about 30 minutes of their arrival
there. No family members had reached the Trauma Centre before
the arrival of the local police. Ext. PW1/A statement was recorded
by the police after about one hour of reaching the Trauma Centre.
He had not been examined by the doctor prior to the recording of
his statement and that his medical examination had been conducted
after the recording of his statement. His statement was recorded by
the police while he was in the emergency ward, at which time,
PW2 was on a stretcher inside the emergency. PW1 deposed that
his family members reached the Trauma Centre after about two
hours. He denied the suggestion his family members had reached
the Trauma Centre along with the police prior to the recording of
his statement. PW1 also denied the suggestion that he had been
tutored by his family members before making his statement or that
he had falsely implicated A1 to A4 to pressurise them to withdraw
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the case filed by Nikhat Gul. According to him, PW2 had earlier
filed a complaint case in the year 2009 against Nikhat and others
alleging offences punishable under Section 308 IPC.
13.2. PW1 further deposed that the local police met him for
the first time at the Trauma Centre when his statement was
recorded. He initially deposed that thereafter the police had not
met him, but corrected himself and deposed that police met him
again on 01.01.2012 when the site plan was prepared at his
instance and on 03.03.2012 when he and his brother were taken to
the Trauma Centre for collection of blood samples. He admitted
that he had not personally produced his blood stained clothes to the
police, but PW2 and his father had handed over his clothes to the
police at the police station. He is unaware whether his clothes had
been handed over about one or two months after the incident. PW1
admitted that he was facing one criminal case registered under the
Gambling Act, which had been registered prior to the incident in
this case.
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14. PW2, the brother of PW1 when examined, deposed that
on 31.12.2011 at about 01:30 PM, he was returning home on his
motorcycle after withdrawing ₹1,50,000/- from Central Bank of
India, Mehrauli. As soon as he reached near his house and stopped
his motorcycle, Sultan (A2), Suhail (A3) and Umer (the CCL)
came out of their apartment and started beating and abusing him.
Meharban Ali along with his sons Talha (A1) and Juber (A4) came
there. Talha (A1) and Juber (A4) were having dandas in their
hands. Thereafter, all five of them, that is, A1 to A4 and Umer (the
CCL) started beating him. Suhail (A3) brought an iron rod from
the former’s house and gave a blow on his head. Meharban Ali
exhorted all the accused persons to kill him, and thereafter all of
them beat him with iron rod and dandas, as a result of which, he
fell down. The accused persons had also hurled stones at him.
Seeing the incident, PW1, his brother, came to his rescue and when
the latter intervened, the accused persons also beat him. PW1
sustained injuries on his head. PW2 deposed that he sustained
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injuries on his head, below his left eye, waist and other parts of the
body. He became unconscious and the money withdrawn by him
from the bank was lost during the incident. PW2 further deposed
that the accused persons are also accused in a case alleging
commission of offence under Section 308 IPC, in which case he
was a witness, due to which he was beaten up. He was discharged
from the hospital on 11.01.2012 and his statement was recorded
thereafter. He went to the police station on 21.02.2012 and handed
over his blood stained clothes and those of his brother, which were
seized vide Ext. PW2/A memo. He identified his clothes marked as
Ext. P2. On 03.03.2012 he and PW1 were taken by the police to
AIIMS Trauma Centre where his blood sample was taken.
14.1. PW2, in his cross examination, denied the suggestion
that on 31.12.2011, PW1, his brother, had attacked Talha (A1)
with a knife which caused injury on the right arm of the latter or
that he had accompanied his brother during such attack. PW2
denied that pursuant to the said attack, A1 had raised alarm at
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which time people had gathered at the spot or that PW1 had fled
the spot and that he had been apprehended by the public. He
denied that police was informed by Sultan (A2) or that he and his
brother had sustained injuries while trying to save themselves from
the clutches of the public. PW2 further denied the suggestion that
he had falsely implicated the accused persons to pressurise the
latter to compromise a case filed by them against him and his
brother. He also denied the suggestion that they had implicated the
accused persons in connivance with the police. PW2 deposed that
he is unaware as to when the police had arrived at the spot, as he
was unconscious and regained consciousness in the hospital after
about 6 to 7 days. PW2 deposed that his statement was recorded on
12.01.2012 at his house after he was discharged from the hospital
on 11.01.2012. PW2 denied that his statement was recorded at the
instance of his family members. PW2 further denied the suggestion
that when PW1 attacked A1, only Sultan (A3) was present along
with A1. PW2 further denied the suggestion that Meharban Ali
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was neither present nor had he instigated the accused persons. He
further denied that he had falsely named Meharban Ali at the
instance of his brother. On 31.02.2012 he had gone to the police
station with his father to hand over the blood stained clothes he
was wearing on the date of the incident. He had not handed over
the clothes on 12.01.2012 as he was on bed rest at that time.
15. PW4, the father of PW1 and PW2 deposed that on
31.02.2012 he along with his sons went to Mehrauli police station
and had handed over the blood stained clothes of the latter to
PW17, the Investigating officer (IO). PW17 sealed the clothes vide
Ext. PW2/A seizure memo.
15.1. PW4, in his cross-examination, deposed that he came to
know about the incident at about 2.00 PM when he was at his work
site. PW4 further deposed that his son was an in-patient in the
hospital for about 10 to 12 days. PW4 denied the suggestion that
on 31.12.2011, the clothes had not been blood stained and that the
clothes were later manipulated to appear blood stained. PW4
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admitted that criminal cases were pending between his son and the
family members of the accused persons, but no criminal case was
pending between his sons and A1 to A4. PW4 deposed that he is
unaware whether his sons had attacked A1 or whether his son had
received injuries due to a fall while fleeing from the spot.
16. PW8, Head Constable, when examined, deposed that on
31.12.2011, while posted at Mehrauli police station, at about 01.45
PM, copy of Ext. PW3/A DD No. 15-A was assigned to him to
take action regarding a quarrel and was informed that the injured
persons were at house No. 31/1, Ward No. 1, Mehrauli. He also
received the following information (Ext. PW3/B DD No. 19-B) on
phone – “mere bhai ko chaku maar diya hai” at a place near
MTNL Office, Ward No. 1, near Bhul Bhullaiya Road. He along
with Constable Prakash proceeded to the crime spot. There they
were informed that the injured had already been removed to
hospital by the PCR officials. Thereafter, they reached Trauma
Centre, AIIMS and collected the MLCs of PW1 and PW2 vide
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Mark-X and Mark-Y. PW1 was declared fit for statement, whereas
PW2 was unfit. He recorded Ext. PW1/A statement of PW1 in
which the latter named the five accused persons. On the basis of
Ext. PW1/A, he registered Ext. PW7/B FIR for commission of
offence punishable under Section 308 read with Section 34 IPC.
Thereafter, he returned to the scene of crime. Sub-Inspector
Pushpender (PW17) reached the scene at about 01.00 AM on
01.01.2012, pursuant to which, he handed over the DD entry and
MLCs to the former. PW8 further deposed that Talha (A1) had
also given a statement to PW17 that he had sustained injury in the
incident, and hence a cross case was registered. He further deposed
that he had investigated the cross case bearing FIR No. 02/2012 of
P.S. Mehrauli.
16.1. PW8, in his cross examination, admitted that he had
reached the scene after receipt of Ext. PW3/A DD No. 15-A. He
had first recorded Ext. PW1/A of PW1 in the case. PW8 denied the
suggestion that Ext. PW1/A of PW1 had been recorded at the
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police station or that the statement of A1 had been recorded before
Ext. PW1/A was recorded. PW8 admitted that he had recorded
Ext. PW2/A statement of Talha (A1) in FIR No. 02/2012.
17. PW14, Junior Resident, Trauma Centre, AIIMS
deposed that on 31.12.2011 at about 02:24 PM, he had examined
PW1 with alleged history of assault. On examination, he found
laceration over middle scalp, right parietal region and occipital
region, and bruises over both shoulders, both upper arms and left
calf. He had prepared Ext. PW17/A MLC. According to PW14, the
injuries were simple in nature caused by a blunt object. On the
same day, he had also examined PW2 and prepared Ext. PW17/B
MLC report. There was laceration over left parietotemporal region
on the scalp, swelling over left side of face and multiple bruises
over both shoulders, both upper arms, lower back and both thighs.
He opined that the injuries were grievous in nature caused by a
blunt object.
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17.1. PW14, in his cross examination, admitted that on
31.12.2011, he had handed over the MLCs to the police, on which
date he had not signed the MLCs. He also admitted that on
31.12.2011 he had not recorded his opinion in the MLCs regarding
the nature of injuries or the weapon used. He further admitted that
the dates of admission and discharge have not been mentioned in
the MLCs. PW14 denied the suggestion that his opinion regarding
the nature of injuries and weapon have been given at the instance
of the police or that he had not properly examined the injured.
18. PW12, Senior Consultant, Neuro Surgeon, Apollo
hospital, who brought the records relating to treatment of PW2,
deposed that the latter had come to the hospital with an alleged
history of assault on 31.12.2011 at about 01:30 PM. Following the
assault, the injured had lost consciousness and had an episode of
vomiting. As per the records, PW2 was initially taken to Trauma
Centre, AIIMS, New Delhi and thereafter shifted to Apollo
Hospital, New Delhi. On 01.01.2012, he examined PW2 and
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performed a surgery on the head of the patient. During the surgery,
pieces of stone were found in the head of PW2. There were also
fractured bone fragments. Blood clot inside the skull was removed
during the surgery. On 02.01.2012, the pieces of stone removed
during surgery, were handed over to the security personnel police
at Apollo Hospital vide handing over form Mark Y in his presence
and in the presence of Dr. Sunit Mediratta. The patient remained
under treatment till 11.01.2012 and Ext. PW12/A is the discharge
summary.
18.1. PW12, in his cross examination, admitted that the
discharge summary had not been prepared by him. PW12 admitted
that the details spoken to by him relating to the alleged history of
assault and date of discharge was based on the medical records.
19. PW17, Sub-Inspector, Malviya Nagar Police Station,
New Delhi, the IO deposed that, after he took over the
investigation, PW1 had informed him that Yamin Ali and
Meharban Ali, the fathers of the accused persons, were residing in
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Moonlight Apartment and on receiving the information, he
proceeded to the said apartment and arrested A1, who was
identified by PW1. A1 was interrogated and his Ext. PW17/A
‘disclosure statement’ recorded. On 06.02.2012, A2, A3 and A4
surrendered before the trial Court. He moved an application for
their arrest and interrogation which was allowed and their custody
was handed over to him. He interrogated the said accused persons
who made ‘disclosure statements’ Ext. PW6/F1, F2 and F3. He
arrested the accused persons vide Ext. PW6/C1, Ext. PW6/B1 and
Ext. PW6/A1 memos and conducted their personal search vide
memos Ex. PW6/C2, Ex. PW6/B2 and Ex. PW6/A2.
19.1. The iron rod used by Suhail (A3) was recovered at the
instance of A3 and seized vide Ext. PW6/E memo. A1 to A4 were
brought to PS Mehrauli along with the case property and the case
property was deposited in the malkhana. PW1 and PW2 produced
their blood stained clothes which were seized vide Ext. PW2/A
memo. During investigation he collected blood samples of PW1
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and PW2 on 03.03.2012 and seized the same vide Ext. PW17/A
memo. The samples were sent to FSL for examination. PW17
identified Exts. P1 and P2 clothes of PW1 and PW2. According to
him, Ext. P5 is the iron rod recovered at the instance of Suhail
(A3).
19.2. PW17, in his cross examination, denied the suggestion
that he had deliberately not taken any action on the complaint of
the accused persons despite coming to know from the neighbours
that on 31.12.2011, PW1 had caused stab injuries to A1 at which
time PW2 was also present. He has no knowledge regarding any
complaint made by the brother of A1 in this regard. He denied the
suggestion that he was aware that PW1 and PW2 had sustained
injuries during their attempt to flee the scene. PW17 further denied
the suggestion that no disclosure statement had been made by the
accused persons or that the iron rod had been planted. According
to PW17, the iron rod was recovered from the terrace of Moonlight
Apartment. PW17 denied the suggestion that he had deliberately
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not made the neighbours as witnesses as they were not willing to
support the case. On his asking, PW2 had produced his blood
stained clothes and that of PW1 after about a week of his discharge
from the hospital. He had visited the hospital two days after the
incident. The clothes of the injured were not handed over to him
by the doctor.
20. Now, the question is whether the trial court was
justified in finding A1 to A4 guilty of the offence punishable under
Section 308 read with Section 34 IPC based on the aforesaid
materials on record. I shall first deal with the submission of the
learned counsel for the appellants/ A1 to A4, that the CD needs to
be called for and examined by this Court. I refer to Rule 25.56 (1)
of the Rules applicable to the Union Territory of Delhi also to
which reference was made. The said Rule reads:-
“25.56. Procedure when the investigation cannot be
completed within 24 hours
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section 61 of the Code of Criminal Procedure, 1898, he shall make an
application therefor in accordance with the provisions of section 167
of the said Code in Form 25.26(1), to which he shall attach the case
diaries or copies thereof.
The Magistrate will record his orders on the above application,
which will not be returned to the police, but will form part of the
Magistrate’s proceedings. The Magistrate shall sign and date every
page of the case diaries or copies thereof in token of having seen
them. Applications for remand shall be prepared in duplicate by the
carbon copying process, and a copy of the Magistrate’s orders will be
made by the police officer on the carbon copy of the application,
which will then be attached to the police file of the case. The copy will
be attached to the charge-sheet when the case is finally sent for trial.
Case diaries will not form part of the judicial file. The orders of the
High Court in connection with the granting of remands to police
custody are contained in Appendix No. 25.56(1).
(2) XXXXXX
(3) XXXXXX”
(Emphasis Supplied)
21. Relying on the aforesaid Rule, it was argued that it was
obligatory on the part of the jurisdictional magistrate to have
signed and dated every page of the CD or copies of the CD, in
token of having seen them. Such a course of action has never been
adopted or taken or followed by the jurisdictional magistrate/trial
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court and hence, there was every possibility of manipulation of the
CD including the 161 statements of the prosecution witnesses.
Reference was made to the testimony of PW2 wherein, he has
implicated Mehraban Ali, the father of A1 and A4, also in the
crime. It was pointed out that the FIS/FIR of PW1 never refers to
the role of Meherban Ali. The first 161 statement of PW1 and
PW2 also does not refer to his role. But a subsequent 161
statement of PW2 refers to the role of Meherban Ali. Incorporation
of the subsequent 161 Statement of PW2 is a clear manipulation by
the IO and hence this was pointed out as a ground for the Court to
call for the CD and to examine it.
22. Section 172 Cr.P.C., which deals with case diaries,
reads thus:-
“172. Diary of proceedings in investigation.
(1) Every police officer making an investigation under this
Chapter shall day by day enter his proceedings in the investigation in
a diary, setting forth the time at which the information reached him,
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through his investigation.
(1-A) The statements of witnesses recorded during the course of
investigation under Section 161 shall be inserted in the case diary.
(1-B) The diary referred to in sub-section (1) shall be a volume
and duly paginated.
(2) Any Criminal Court may send for the police diaries of a
case under inquiry or trial in such Court, and may use such diaries,
not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call
for such diaries, nor shall he or they be entitled to see them merely
because they are referred to by the Court; but, if they are used by the
police officer who made them to refresh his memory, or if the court
uses them for the purpose of contradicting such police officer, the
provisions of section 161 or section 145, as the case may be, of the
Indian Evidence Act, 1872, shall apply.”
(Emphasis Supplied)
23. This Section firstly lays down that every police officer
making an investigation should maintain a diary of his
investigation. It is well known that each State has its own police
regulations or otherwise known as police standing orders and some
of them provide as to the manner in which such diaries are to be
maintained. These diaries are called case diaries or special diaries.
The Section itself indicates as to the nature of the entries that have
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to be made and what is intended to be recorded is what the police
officer did, the places where he went and the places which he
visited etc. and in general it should contain a statement of the
circumstances ascertained through his investigation. Sub-section
(2) is to the effect that a criminal Court may send for the diaries
and may use them not as evidence but only to aid in such inquiry
or trial. The aid which the Court can receive from the entries in
such a diary usually is confined to utilising the information given
therein as foundation for questions to be put to the witnesses
particularly the police witnesses and the Court may, if necessary,
in its discretion use the entries to contradict the police officer who
made them. Coming to their use by the accused, sub-section (3)
clearly lays down that neither the accused nor his agents shall be
entitled to see them merely because they are referred to by the
Courts. But in case the police officer uses the entries to refresh his
memory or if the Court uses them for the purpose of contradicting
such police officer, then provisions of S.161 or S.145 as the case
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may be of the Evidence Act would apply. It can therefore be seen
that the right of accused to cross examine the police officer with
reference to the entries in the General Diary is very much limited
in extent and even that limited scope arises only when the Court
uses the entries to contradict the police officer or when the police
officer uses it for refreshing his memory and that again is subject
to the limitations of S.145 and 161 of the Evidence Act and for that
limited purpose only the accused in the discretion of the Court may
be permitted to peruse the particular entry and in case if the Court
does not use such entries for the purpose of contradicting the
police officer or if the police officer does not use the same for
refreshing his memory, then the question of accused getting any
right to use the entries even to that limited extent does not arise.
Further, assuming that there is failure to keep a diary as required
by S.172 Cr. P.C, the same cannot have the effect of making the
evidence of such police officer inadmissible and what inference
should be drawn in such a situation depends upon the facts of each
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case. It is well settled that the entries of the police diary are neither
substantive nor corroborating evidence and they cannot be used by
or against any other witness than the police officer and can only be
used to the limited extent indicated above (See Shamshul Kumar
v. State of UP, 1995 KHC 876: (1995) 4 SCC 430). (See also
Queen-Empress v. Mannu 1897 SCC OnLine All 39; Dal Singh
v. The King-Emperor AIR 1917 PC 25; Habeeb Mohd. v. State
of Hyderabad (1953) 2 SCC 231; Khatri and Ors. v. State of
Bihar 1981(3) eILR(PAT) SC 1; Mukund Lal v. Union of India
1989 (1) SCC 622; Malkiat Singh v. State of Punjab (1991) 4
SCC 341)
24. The learned counsel for the appellants/A1 to A4 admit
the legal position that the accused do not have the right to call for
the CD. But the submission is that the court has every right to do
so and in the case on hand, for the court to understand the actual
events that transpired and to understand the manipulations done
during the course of the investigation conducted, it is absolutely
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necessary for the court to call for the CD and peruse the same. I
am afraid I am unable to agree to the argument advanced by the
learned counsel for the appellants/A1 to A4. PW7, the IO, when in
the box was never asked about any manipulation(s) alleged to have
been done in the CD. It is true that a suggestion is seen made to
PW17 that he had not conducted a proper investigation. However,
there is not even a suggestion seen put to PW17 that the 161
statements had been manipulated in the CD or that the manipulated
supplementary statement of the witnesses had been incorporated in
the CD. This argument has been raised for the first time before this
court and no such argument is seen raised before the trial court. As
per illustration (e) to Section114 of the Evidence Act, official acts
are presumed to have been performed regularly, unless otherwise
shown. Moreover, the Rules, relied on, do not in any manner
override the provisions of the Cr.P.C. The said Rules are meant for
the guidance of the police officers of the State and supplement the
provisions of the Cr.P.C., but do not supplant them (Paramjit
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Singh alias Mithu Singh v. State of Punjab (2007) 13 SCC 530).
24.1 Further, in the case of defective investigation, the Court
has to be circumspect in evaluating the evidence. But it would not
be right in acquitting an accused solely on account of the defect; to
do so would tantamount to playing into the hands of the I.O. if the
investigation is designedly defective (Karnel Singh v. State of
M.P. (1995) 5 SCC 518). In Paras Yadav v. State of Bihar,
(1999) 2 SCC 126, it has been held that if the lapse or omission is
committed by the investigating agency or because of negligence,
the prosecution evidence is required to be examined de hors such
omissions to find out whether the said evidence is reliable or not.
The contaminated conduct of officials should not stand in the way
of evaluating the evidence by courts. (See also Ram Bihari Yadav
v. State of Bihar, (1988) 4 SCC 517; Amar Singh v. Balwinder
Singh (2003) 2 SCC 518 and Dhanej Singh v. State of Punjab
2004 KHC 757 : (2004) 3 SCC 654). In these circumstances, I do
not find the need to call for and peruse the CD.
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25. Going by the prosecution case, Exhibit P5 iron rod used
by A3 for assaulting PW2 was recovered at the instance of the
former. According to PW17, Ext. PW6/E is the seizure memo as
per which the iron rod was seized. The seizure memo reads :-
“Memo of Identification and Recovery of Rod (P-3)
In the presence of the following witnesses, the accused Sohail
Khan, s/o Yamin Ali, r/o H. No. 31/I, Ward-I, Mehrauli, New Delhi,
during the investigation of the aforementioned case and while in
police custody, voluntarily and without any pressure, led the way to
Moonlight Apartment.
Inside this apartment building, where the accused resides in a
ground-floor flat, he went to the top floor roof. From a corner of the
roof, he produced an iron rod that was lying there and stated: “This is
the same rod which I took from my flat on 31/12/2011 during the fight
and used to hit Mohd. Hanif on the head, causing him injury.”
Upon measurement, the iron rod was found to be 2 feet 6½
inches in length. There were traces of sand/cement sticking to the rod,
and it had a lacquer-like appearance. A parcel (bundle) of the rod
was prepared using a white cloth and sealed with the seal ‘P.K.’. The
recovered rod parcel was taken into possession as evidence (Vajah
Saboot) via this memo. After use, the seal was handed over to
Constable Kailash, No. 1288/SD.”
(Emphasis supplied)
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26. Section 27 of the Indian Evidence Act, 1872 reads:-
“Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police-officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved. ”
26.1. Section 27 is an exception to S.25 and 26 which
prohibit the proof of a confession made to a police officer or a
confession made while a person is in police custody unless it is
made in immediate presence of a Magistrate. S.27 allows that part
of the statement made by the accused to the police “whether it
amounts to a confession or not” which relates distinctly to the fact
thereby discovered to be proved. Thus, even a confessional
statement before the police which distinctly relates to the
discovery of a fact may be proved under S.27. The extent of the
information admissible must depend on the exact nature of the fact
discovered to which such information is required to relate. The fact
discovered embraces the place from which the object is produced
and the knowledge of the accused as to this, and the information
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given must relate distinctly to this fact. Information as to past
user, or the past history of the object produced is not related to its
discovery in the setting in which it is discovered. Information
supplied by a person in custody that ‘I will produce a knife
concealed in the roof of my house’ leads to the discovery of the fact
that a knife is concealed in the house of the informant to his
knowledge and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. If,
however, to the statement the words be added ‘with which I
stabbed A’, these words are inadmissible since they do not relate to
the discovery of the knife in the house of the informant.
(Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962
SC 1788).
26.2 In State of Himachal Pradesh v. Jeet Singh, AIR
1999 SC 1293), the Apex Court relying on the dictum in Pulikuri
Kottaya, AIR 1947 PC 67, held that the discovery of fact referred
to in S.27 of the Evidence Act is not the object recovered but the
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fact embraces the place from which the object is recovered and the
knowledge of the accused as to it. The ratio in Pulikuri Kottaya
(Supra) has received unreserved approval in successive decisions
of the Apex Court and to name a few – in Jaffar Hussain
Dastagir v. State of Maharashtra, (1969) 2 SCC 872; K.
Chinnaswamy Reddy v. State of Andhra Pradesh (AIR 1962
SC 1788; Earabhadrappa @ Krishnappa v. State of Karnataka
(1983) 2 SCC 330; Shamshul Kanwar v. State of U.P. (1995) 4
SCC 430; State of Rajasthan v. Bhup Singh (1997) 10 SCC 675
and also in several other later decisions. The manner of proving the
disclosure statement under S.27 of the Evidence Act has been the
subject matter of consideration by the Apex Court in various
judgments, some of which are being referred to.
26.3 The statement which is admissible under S.27 is the one
which is the information leading to discovery. Thus, what is
admissible being the information, the same has to be proved and
not the opinion formed on it by the police officer. In other words,
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the exact information given by the accused while in custody which
led to recovery of the articles has to be proved. It is, therefore,
necessary for the benefit of both the accused and the prosecution
that information given should be recorded and proved and if not so
recorded, the exact information must be adduced through evidence.
The basic idea embedded in S.27 of the Evidence Act is the
doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered as a search
made on the strength of any information obtained from a prisoner,
such a discovery is a guarantee that the information supplied by
the prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it
becomes a reliable information. No doubt, the information
permitted to be admitted in evidence is confined to that portion of
the information which “distinctly relates to the fact thereby
discovered”. But the information to get admissibility need not be
so truncated as to make it insensible or incomprehensible. The
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extent of information admitted should be consistent with
understandability. Mere statement that the accused led the police
and the witnesses to the place where he had concealed the articles
is not indicative of the information given. ( See Bodh Raj v. State
of Jammu and Kashmir, (2002) 8 SCC 45).
26.4 In Babu Saheba Goudar Radragoudar v. State of
Karnataka, 2024 KHC 6222: AIR 2024 SC 2252, it has been
held that the statement of an accused recorded by a police officer
under S.27 of the Evidence Act is basically a memorandum of
confession of the accused recorded by the Investigating Officer
during interrogation which has been taken down in writing. The
confessional part of such statement is inadmissible and only the
part which distinctly leads to discovery of fact is admissible in
evidence as laid down by this Court in the case of State of Uttar
Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125. Thus,
when the Investigating Officer steps into the witness box for
proving such disclosure statement, he would be required to narrate
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what the accused stated to him. The Investigating Officer
essentially testifies about the conversation held between himself
and the accused which has been taken down into writing leading to
the discovery of incriminating fact(s).
26.5. In the case of Mohd. Abdul Hafeez v. State of
Andhra Pradesh, 1983 (1) SCC 143, it was held that if evidence
otherwise confessional in character is admissible under S.27 of the
Indian Evidence Act, it is obligatory upon the Investigating Officer
to state and record who gave the information; when he is dealing
with more than one accused, what words were used by him so that
a recovery pursuant to the information received may be connected
to the person giving the information so as to provide incriminating
evidence against that person. Therefore, it is only that part of the
statement which distinctly relates to the discovery of the fact that
is admissible.
27. Coming back to the case on hand, as is evident from
Ext. PW6/E, seizure memo, the same does not satisfy the test laid
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in the aforesaid decisions. PW17 ought to have spoken to the
words of A3 when examined before the trial court. Apparently, the
same has not been done and hence, the recovery of Ext. P5 iron
rod alleged to have been made as per the disclosure statement of
A3 cannot be accepted.
28. Be that as it may, it is well settled that recovery of the
weapon used for commission of the offence is not a sine qua non
for concluding regarding the guilt of the accused. (See Rakesh v.
State of U.P., (2021) 7 SCC 188). If the remaining materials on
record is creditworthy, the same can certainly be relied on.
29. The next argument advanced by the learned counsel is
with regard to the nature of injuries sustained by PW1 and PW2. It
was submitted that the MLCs and the testimony of the doctor
probabilizes the defense version that the mob that had gathered at
the scene of crime had attacked PW1 and PW2 with stones,
causing injuries and hence, the reason why pieces of stone were
found during the surgery conducted on PW2. In the light of such
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evidence, the version of PW1 and PW2 of assault with iron rod
and danda is improbable and highly unlikely, argued the learned
counsel.
30. Exts. PW17/ A and PW17/B are the MLCs of PW1 and
PW2 respectively, Ext. PW17/A shows that PW1 had sustained
injuries, simple in nature, namely, lacerations over the middle of
the scalp, right parietal region, and occipital region, with bruises
over both shoulders, both upper arms, and the left calf; Ext.
PW17/B shows that PW2 sustained injury, grievous in nature,
namely, laceration over the left parietotemporal region of the
scalp, swelling over the left side of the face, and multiple bruises
over both shoulders, both upper arms, the lower region of the back,
and both thighs. The injuries according to the doctor have been
caused by a blunt weapon. PW1 in his FIS/FIR says that when A1
to A4 attacked PW2, the latter had fallen down. This is spoken to
by PW2 also. PW2 has also a case that A1 to A4 had hurled stones
at him. When PW1 and PW2 were in the box, A1 to A4 had no
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case that the mob that is alleged to have gathered on hearing their
cries for help had manhandled PW1 and PW2. On the other hand,
their only suggestion to PW1 and PW2 is that the both of them
might have sustained injuries during the course of their attempt to
flee from the scene of crime. There is never a case for A1 to A4
and not even a suggestion is seen put to PW1 and PW2 that the
mob that is alleged to have gathered there hearing the cries of A1
had manhandled/assaulted or attacked PW1 and PW2 and caused
injuries to them. It was only when questioned under Section
313(1)(b) Cr.P.C., A1 to A4 had developed a case that the mob had
caused injuries to PW1 and PW2. The testimony of PW1 and PW2
regarding the manner in which they sustained injuries has not been
discredited. As noticed earlier, PW1 and PW2 deposed that PW2
had fallen on the ground when he had been attacked. This explains
the presence of pieces of stone found in his head injury, which
were removed during surgery. Therefore, the argument that the
defence version stands probabilized also cannot be accepted.
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31. Now coming to the argument that PW14, the doctor
who initially examined PW1 and PW2 admitted that on
31.12.2011, when he had examined the injured, he had not signed
the MLCs. Referring to this testimony, it was argued that this is yet
another aspect which would indicate the manipulations done to
create evidence in support of the prosecution case.
32. I have already referred to the testimony of PW14 in
which he refers to the injuries seen on PW1 and PW2. PW12 refers
to the details of the surgery conducted and the removal of pieces of
stone found in the head injury of PW2. PW12 also deposed that
there were fractured bone fragments and blood clot which were
removed from the skull during the surgery. PW14 is the first
doctor who had examined PW1 and PW2 in this case. PW14 while
in the box spoke of the nature of the injuries seen on PW1 and
PW2. He admitted that his signatures at point ‘A’ in the MLCs
were put on 06.01.2012. As on 31.12.2011, the nature of injuries is
recorded as “pending investigation”. The opinion that the injury of
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PW1 was simple and injury of PW2 was grievous in nature and
that the injuries had been caused by a blunt weapon is seen
recorded on 06.01.2012.
33. A wound certificate is only a previous statement of the
author thereof if he is examined. It may be used for any purpose
under Sections 145, 155, 157 and 159 of the Evidence Act. What
the doctor has observed at the time of examination of the injured is
direct evidence. Therefore, he should depose to the contents of the
certificate while in the box. His such deposition is substantive
evidence and not the certificate. The certificate can only be used to
corroborate the testimony of the doctor. The certificate can be
marked as an exhibit only after the doctor deposes to the contents
thereof. (See Munshi Prasad v. State of Bihar, (2002) 1 SCC
351; State of U.P. v. Mohd. Iqram, (2011) 8 SCC 80; Krishnan
Kutty v. State of Kerala 2015 (2) KHC 322: ILR 2015 (2) Ker
484).
34. When PW14 was in the box, the appellants/A1 to A4
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never had a case that he had done some manipulations in the
certificates. On the other hand, the only suggestion is that his
opinion regarding the nature of injuries and the weapon used was
given at the instance of the police. On going through the testimony
of PW14 and PW12, I do not find any reason(s) to disbelieve them.
Further, the presumption under illustration (e) to Section 114 is
also available to the prosecution that official acts have been
regularly performed unless otherwise shown. In the case on hand,
no materials have been shown or brought on record to show that
PW12 or PW14 had manipulated the records to help the
prosecution. In such circumstances, I find no reasons to disbelieve
the medical evidence on record.
35. Further the presence of A1 to A4 at the scene of crime
is not disputed. The details of the injuries are spoken to by PW12
and PW14. A1 to A4 also do not have a case that PW1 and PW2
were not injured on the date of the incident. Their only case is that
PW1 and PW2 might have sustained injuries during the course of
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their attempt to flee from the scene of crime. PW1 and PW2 speak
of the manner in which they had sustained injuries. Though they
were extensively cross examined nothing was brought out to
disbelieve their version.
36. It is true fact that from the materials on record, it
appears that the parties are in inimical terms. But that alone is no
reason to disbelieve PW1 and PW2. That had made this Court only
more cautious in examining the evidence on record. On going
through the testimony of the prosecution witnesses, I do not find
any reason(s) to disbelieve the case of PW1 and PW2 regarding
the manner in which injury was caused to them, which is also
supported by the medical evidence on record.
37. Further, it was submitted that the trial court has
nowhere referred to the role of Meharban Ali in the impugned
judgment. PW2 in his examination-in-chief has a case that
Meharban Ali, father of A1 and A4 had exhorted A1 to A4 to
attack and kill them. However, there is no such case for PW1. It
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was also pointed out that after a lapse of several days, an
additional 161 statement of PW2 was recorded by the police in
which a reference has been made to the role of Meharban Ali.
Therefore, pointing to this aspect it was argued that this was an
attempt made by PW2 to implicate an innocent person, which
would also raise doubts about his credibility.
38. Column 12 of the chargesheet/final report in the case
reads thus:- ” Detail of accused of not charge sheeted. (suspect)
(Use separate sheet for each accused) N/A
S. No. ……….
a) Name………Meherban Ali……….”
39. The charge sheet/final report was submitted by the
Investigating Officer under Section 173 Cr.P.C. Sub-section (2)(i)
of Section 173 Cr.P.C. says that as soon as the investigation is
completed, the officer in-charge of the police station shall forward
to the Magistrate empowered to take cognizance of the offence on
a police report, a report in the form prescribed by the State
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Government, stating the names of the parties; the nature of the
information; the names of the persons who appear to be acquainted
with the circumstances of the case; whether any offence appears to
have been committed and, if so, by whom; whether the accused
has been arrested; whether he has been released on his bond and, if
so, whether with or without sureties; whether he has been
forwarded in custody under section 170 and in case of sexual
offences whether the report of medical examination of the woman
has been attached. Therefore, it is only on completion of
investigation, the final report is submitted before the jurisdictional
magistrate/Court. PW17, the IO has no case that it was before the
completion of investigation he had submitted the final report. The
final report also refers to the offence committed and the persons
who committed the same. PW17 has no case that apart from A1 to
A4, any other person(s) is/ are involved in the crime. In such
circumstances, referring to Meharban Ali as a suspect after
completion of investigation, appears to be without any basis and
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that seems to have been quite unnecessary. Admittedly, the trial
court vide order dated 16.04.2012 has discharged Meharban Ali.
The said order has not been challenged.
40. It is true that PW2 has spoken regarding the role of
Meherban Ali also. However, the materials on record does not
support or substantiate the said version. PW2 seems to have
slightly exaggerated his version. Merely because that part of his
testimony is disbelieved and rejected, it does not mean that his
entire testimony needs to be rejected because the maxim “Falsus in
uno, falsus in omnibus”, meaning, false in one thing, false in
everything, is not part of Indian law and jurisprudence and is, at
best, a rule of caution. The entire evidence of the witness need not
be discarded only because some of his statements are proved to be
factually incorrect. However, such testimony would have to be
viewed with care and caution before it is accepted and acted upon.
(See George v. State of T.N., 2024 SCC OnLine SC 3730; Arun
v. State of M.P., 2025 SCC OnLine SC 668 : 2025 KHC 7225;
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Edakkandi Dineshan v. State of Kerala, (2025) 3 SCC 273:
2025 KHC 7016 )
41. Ext. PW1/A FIS/FIR is seen recorded on 31.12.2011 at
11:45 PM. On the basis of the same, Ext. PW7/B FIR was
registered on 01.01.2012 at 00:15 hours. The materials on record
show that PW2 was in quite a serious condition, when he was
taken to the hospital. The crime is seen registered within about an
hour and a half of recording the statement of PW1. It is true that
the incident in this case took place on 31.12.2011 at about 01:30
PM. Materials on record show that soon after the incident PW1
and PW2 were taken to the hospital for treatment. The argument
advanced is that Ext. PW1/A FIS/FIR was given by PW1, after
consulting his family members and therefore, there was every
possibility of embellishments and improvements in the prosecution
case. However, there is no material(s) on record to show that after
PW1 and PW2 were taken to the hospital for treatment and before
the statement of PW1 could be or had been recorded, there was
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any possibility of any of the family members intervening and
tutoring PW1. According to PW1, he and PW2 were taken from
the scene to the emergency ward of the hospital. The presence of
the family members has not been spoken to by any of the
prosecution witnesses. No suggestion was also put to any of the
witnesses that when PW1 and PW2 were taken from the scene of
crime, any of their relatives had also accompanied them in the
PCR van. On the other hand, the case of A1 to A4 when
questioned under Section 313(1)(b) Cr.P.C. is that their aunt had
accompanied A1, (who is alleged to have been assaulted by PW1
and PW2), when he was taken to the hospital. There is no
material(s) on record to the effect that there was anybody or that
any of the family members were around PW1 or that they had in
any way influenced or tutored him to give the statement. Further,
all delays are not fatal. In the light of the materials on record, I do
not find any substantial unexplained delay in the registration of the
crime.
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42. Reference was also made to the delay in seizing the
blood stained clothes worn by PW1 and PW2. Materials on record
do reveal that there was delay in seizing the clothes. However, in
the light of the other materials on record, I find that the same has
not affected the prosecution case because A1 to A4 have never a
case that PW1 and PW2 were not injured. Their only stand is that
they had not caused the injuries and that the injuries were not
caused to PW1 and PW2 in the manner spoken to by the witnesses.
That being the position, the delay in seizing the blood stained
clothes worn by PW 1 and 2 is immaterial.
43. A further argument was advanced that the material
objects/case property should be called for by the Court and
personally inspected, which would show that the chain of custody
of the material objects has not been established. An examination of
the objects would also reveal no blood stains in the weapon that
was alleged to have been used or in the clothes that were alleged to
have been seized.
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44. The incident in the case on hand took place in the year
2011. Fifteen years have elapsed since the date of the incident. At
this late stage, examining Ext. P5, the iron rod or the clothes worn
by PW1 and PW2 would not in any way help this Court. Further,
the material objects or the case property that the learned counsel
wants this Court to examine in addition to Ext. P5 iron rod are Exts
PW6/G Seizure memo of one plastic bottle containing parcel of
stones removed by doctor during surgery; PW2/A seizure memo of
the blood stained clothes; PW17/A seizure memo of blood gauze
and PW6/E seizure memo regarding recovery of Ext. P5 iron rod.
I have already held that even in the absence of the blood stained
clothes and Ext. P5 iron rod, there is ample material on record to
come to a conclusion regarding the guilty of the accused.
Therefore, examination of the aforesaid objects is absolutely
unnecessary.
45. Yet another argument advanced was regarding the
shifting of PW1 and PW2 from the AIIMS Hospital to the Apollo
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Hospital for treatment. It was submitted that AIIMS Hospital is
one of the best hospitals in the country and so there was no need to
shift the injured. But they were shifted to a private hospital
deliberately to fabricate evidence and manipulate the case in such a
manner to help PW1 and PW2. Neither PW1, the doctor who first
examined the injured or PW12, the doctor who performed the
surgery on PW2 was asked the reason for the shifting. Likewise,
neither PW1 and PW2 nor PW17, the IO, was asked the reason for
the shifting. No material(s) have been brought on record to
probabilize the argument that it was for manipulation of records,
this shifting had been done. Therefore, this Court is unable to
accept the said argument also.
46. It was also submitted by the learned counsel for the
appellants/A1 to A4 that PW2 has a case that an amount of
₹1,50,000/- was lost in the incident. Referring to this testimony of
PW2, it was argued that the attempt of PW2 was to implicate the
appellants in a more grave crime like the offence contemplated
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under Section 394 IPC, but the same is not supported by any sort
of evidence. This was also pointed out as a reason for disbelieving
PW2.
47. It is true that PW2 deposed that on the said day he had
withdrawn an amount of ₹1,50,000 from the bank and that it was
while he was on his way home, the incident had occurred. PW2
only deposed that he lost the money during the course of incident.
According to him, he lost consciousness on being attacked and that
he had fallen on the ground. PW2 has never a case that the money
had been taken away or stolen by the appellants/A1 to A4.
Therefore, the IO has rightly not charged the appellants for any
offence punishable under Section 394 IPC.
48. It was further submitted that A1 to A4 may be given the
liberty to adduce additional evidence. Liberty was sought to
produce the wound certificate of A1 and other evidence produced
in the counter case in which PW1 and PW2 hererin are the accused
persons. In the said case PW1 and PW2 have been acquitted and
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hence, an appeal has been preferred against the said verdict as
CRL.A. 209/2019 which was heard by this court along with this
appeal.
49. It is well settled that when there is a case and a counter
case or cross case, the evidence will have to be considered
separately. In deciding each of the cases, the Court can rely only
on the evidence recorded in that particular case. The evidence
recorded in the cross case cannot be looked into. Nor can the Judge
be influenced by whatever is argued in the cross case. Each case
has to be decided on the basis of evidence which has been placed
on record in that particular case without being influenced in any
manner by the evidence or arguments advanced in the cross case.
(See Mitthulal v. State of M.P., (1975) 3 SCC 529 : AIR 1975
SC 149; Nathi Lal and Others v. State of U.P. and Another
1990 SCC (Cri) 638). In such circumstances, the request for
receiving additional evidence cannot be allowed and this Court
will have to decide this appeal only on the basis of the evidence
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that is available on record and not decide the case on the basis of
materials in the cross case or cross appeal. Moreover, A1 to A4
had ample opportunity to produce whatever evidence they wanted
on their behalf before the trial court. There is never a case for
appellants/A1 to A4 that no such opportunity had been given by
the trial court. No reasons have been given as to why that
opportunity was never availed. That being the position, I find no
reason(s) to invoke the provisions of Section 391 Cr.P.C.
50. In the light of the aforesaid discussion, I do not find any
infirmity in the impugned judgment calling for an interference by
this Court.
51. In the result the appeal sans merit is dismissed.
52. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
APRIL 23, 2026
p’ma/rs/kd
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