Identification of the accused after a long delay, coupled with material inconsistencies in witness testimony, undermines evidential reliability; absence of corroborating evidence leads to an acquittal.

JUDGMENT :

SANDEEP MEHTA, J.

1. Heard.

2. Leave granted.

3. The instant appeal is directed against the final judgment and order dated 29th September, 2022, passed by the Division Bench of the High Court of Delhi at New Delhi¹[Hereinafter, referred to as the “High Court”.] in Criminal Appeal No. 281 of 2021, whereby the appeal preferred by the appellant Raj Kumar @ Bheema²[Hereinafter, referred to as the “accused-appellant”.] came to be dismissed, affirming the judgment dated 12th February, 2021, rendered by the learned Additional Sessions Judge, South East, Saket Courts, New Delhi³[ Hereinafter, referred to as the “trial Court”.]. By the said judgment, while the accused-appellant was acquitted of the charges under Sections 3, 3(1)(i), 3(1)(ii), 3(2), and 3(4) of the Maharashtra Control of Organised Crime Act, 1999⁴[For short, ‘MCOCA’.], and Sections 396, 307, 397, 412 read with Section 34 of the Indian Penal Code, 1860⁵[For short, ‘IPC’.], he was convicted for the offence punishable under Section 302 IPC, whereas the remaining co-accused were acquitted. The High Court further affirmed the order on sentence dated 20th February, 2021, whereby the accused-appellant was sentenced to undergo imprisonment for life with a fine of Rs.5,000/-, and in default whereof, to further undergo simple imprisonment for a period of one month.

PROSECUTION CASE

4. On the intervening night of 2nd/3rd November, 2008, at about 1:50 a.m., an information was received at Police Station, New Friends Colony through wireless operator, regarding an incident of house breaking by night at House No. 81, Sukhdev Vihar, near Escort Hospital, where the intruders were allegedly assaulting the occupants of the premises. At about 2:00 a.m., further information was received at the said Police Station, which was reduced into writing vide DD No. 29A, as per which, Head Constable Bhagirath (PW-7) informed that SI Sanjeev Solanki (PW-17) may be sent to the spot.

5. Pursuant thereto, SI Sanjeev Solanki (PW-17), accompanied by Constable Ashok Kumar (PW-9), proceeded to the place of occurrence and apprised the Additional S.H.O., who arrived there shortly thereafter. Upon entering the premises, they found the sliding door of the drawing room broken, the side grill bent, the house ransacked, and the household articles scattered. A large pool of blood was noticed in the lobby, where the dead body of an elderly male (deceased-Madan Mohan Gulati) was lying, alongside certain articles. Bloodstains and articles in disarray were also observed in the adjoining bedroom.

6. On hearing faint cries emanating from the adjoining bedroom, the police officials rushed inside and found an elderly lady, later identified as Smt. Indra Prabha Gulati (PW-18), lying in an injured condition. She was immediately shifted to AIIMS Hospital by the PCR. Thereafter, SI Sanjeev Solanki (PW-17), accompanied by Inspector S.K. Sharma (PW-15), proceeded to the Trauma Centre, AIIMS, where Smt. Indra Prabha Gulati (PW-18) was under treatment. Medico-Legal Certificate (MLC)⁶[Exh. 21/A.] of the injured, Smt. Indra Prabha Gulati (PW-18) was prepared on 3rd November, 2008, by Dr. Sharwan. The MLC recorded that the injured was fit for statement and noted multiple grievous stab injuries, including blood clots around the nether region, scalp- deep wounds, and a lacerated wound near the right eyebrow. The nature of the weapon used to cause the injuries was opined to be sharp.

7. Upon being declared fit, the statement (Fard bayan)⁷[Exh. PW-17/A.] of Smt. Indra Prabha Gulati (PW-18) was recorded by SI Sanjeev Solanki (PW-17) and based on the said statement, Inspector S.K. Sharma (PW-15) prepared a rukka and handed it over to SI Sanjeev Solanki (PW-17), pursuant to which an FIR⁸[ FIR No. 601/2018 dated 3rd November, 2008.] came to be registered at Police Station, New Friends Colony, for the offences punishable under Sections 394/397/302/307/34 of IPC.

8. On 5th November, 2008, body of the deceased Madan Mohan Gulati was identified