CRL.A. 502/2003 & CRL.A. 528/2004 Page 1 of 29

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 12.03.2026

Pronounced on: 26.05.2026

+ CRL.A. 502/2003

ISHWAR .....Appellant

Through: Mr. Hemant Baisla, Mr.

Hemant Kumar Niranjan, Ms.

Shikha, Ms. Neha Yadav, Advs.

versus

STATE .....Respondent

Through: Mr. Aman Usman, APP with

Mr. Manvendra Yadav, Mr.

Atiq Ur Rehman, Advs. and

Insp. Kishore Kumar, PS

Vasant Kunj North.

+ CRL.A. 528/2004

KULDEEP @ KALLU .....Appellant

Through: Mr. Vinayak Bhandari, Panel

Counsel, DHCLSC with Ms.

Teesta Mishra and Mr. Sushant

Singh, Advs.

versus

STATE .....Respondent

Through: Mr. Aman Usman, APP with

Mr. Manvendra Yadav, Mr.

Atiq Ur Rehman, Advs. and

Insp. Kishore Kumar, PS

Vasant Kunj North.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

HON'BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T

RAVINDER DUDEJA, J.

1.These two appeals have been filed by the appellants against the

judgment of conviction dated 05

th

April, 2003 and the order on

sentence dated 19

th

April, 2003 passed by the learned Additional

CRL.A. 502/2003 & CRL.A. 528/2004 Page 2 of 29

Sessions Judge, New Delhi [“trial court”], in Sessions Case No.

37/2000, arising out of FIR No. 154/1999 registered under sections

302/201/212/120A of the Indian Penal Code, 1860 [“IPC”] at Police

Station Vasant Kunj. Since both appeals emanate from the same FIR,

involve identical questions of fact and law, and assail the common

impugned judgment, they are being disposed of together by this

common judgment.

Factual Matrix

2. Prosecution case, in brief, is that on 27

th

March, 1999 at about

6:50 AM, an information was received at Police Station, Vasant Kunj

that the body of a Police Constable was lying near Rajokri Pahari. The

information was recorded vide DD No. 9-A [Ex. PW-10/A4]. The DD

entry was entrusted to SI Prahlad Yadav (PW-8), who along with

Constable Jalvir Singh reached at the spot. Subsequently, Inspector

Mohd. Iqbal (PW-20), the then SHO, PS Vasant Kunj, also reached

there and found that the body of Constable Rambir, in police uniform,

was lying in a five feet deep pit with a heavy stone lying near the head

of the deceased. On inspection of the body, it was found that there

were two holes on the left side of the shirt worn by the deceased with

corresponding holes in the baniyan (vest) and two corresponding

holes on the body of the deceased Constable Rambir. The name plate

in the name of ‘Constable Rambir’ was found near the body, which

was stained with blood. The body and clothes were smeared with

blood. There was also a burn injury mark on the left elbow of the

deceased.

3. An Election ID Card [Ex. PW-6/A] in the name of Kuldeep

CRL.A. 502/2003 & CRL.A. 528/2004 Page 3 of 29

(appellant) was found lying at a distance of five feet from the body on

the northern side. Blood was found on the ground. One empty

cartridge was found at a distance of three feet from the blood. The left

shoe of make ‘Bata’ of the deceased was found at a distance of 300

feet on the northern side. Blood was also found at a distance of about

20 feet on the eastern side near the electric pole. The blood was also

seen on two bricks, which were lying at the spot.

4. Crime Team was called for inspection of the spot. The Crime

Team Photographer took the photographs of the scene of crime.

Exhibits were lifted from the spot and duly sealed. Inspector Mohd.

Iqbal (PW-20) prepared the Rukka [Ex. PW-20/A], on the basis of

which, FIR was registered at PS Vasant Kunj under Sections 302/201

IPC. Exhibits were then deposited in the Malkhana and body was sent

for post-mortem.

5. Next day, that is, 28

th

March, 1999, a secret information was

received at PS Vasant Kunj that Kuldeep @ Kallu was present at

Rajendra Park, Kachchi Colony, Gurgaon. The Investigating Officer

[“IO”] Inspector S.K. Patil (PW-16) along with police staff searched

for Kuldeep near the house of accused Ishwar Singh at Rajendra Park.

Accused Kuldeep and Ajay were overpowered, while their associate,

whose name was disclosed by accused Kuldeep as Darshan, managed

to escape. Upon interrogation, accused Kuldeep and Ajay confessed

their guilt. They were arrested. Their disclosure statements were

recorded. In his disclosure statement (Ex PW-4/A), accused Kuldeep

stated that he can get the incriminating articles recovered. Pursuant to

the said disclosure, he led the police to Ishwar’s house, and at his

CRL.A. 502/2003 & CRL.A. 528/2004 Page 4 of 29

instance, the weapon of offence, that is, country made pistol (Desi

Katta) (Ex. PW-4/G) was recovered from a brass Tokery lying on the

Taand of the house. He also got recovered a blue colour LML Vespa

Scooter, without number plate (Ex. PW-4/B), belonging to deceased

Constable Rambir, from the room of Ishwar’s house. He also got

recovered a blood stained white shirt (Ex. PW-4/E), which was

hanging on a wire in the courtyard of Ishwar’s house.

6. Accused Ajay got his blood stained shirt and jeans/pant (Ex.

PW-4/D) recovered from the Taand of Ishwar’s house. All the

recovered articles were sealed and seized by the IO in the presence of

accused Ishwar Singh.

7. Accused Ishwar Singh was also arrested for the commission of

offence under Section 212 IPC for knowingly harbouring the co-

accused persons and for allowing the accused to conceal the scooter of

the deceased and the weapon used in the commission of offence at his

house.

8. During further investigation, accused Gopal was apprehended

and arrested from Uttam Nagar Bus Stand on the pointing out by his

wife and brother-in-law. On interrogation, he gave disclosure

statement (Ex. PW-8/G) and got recovered his blood stained shirt and

pant (Ex. PW-4/E) from the Taand of Ishwar’s house.

9. After completion of investigation, charge sheet was filed

against the accused persons under Sections 302/201/120-

B/186/353/332 IPC and under Sections 25/27/54/59 Arms Act, 1959.

10. Charge under Section 302/34 IPC and under Section 201/34

IPC were framed against accused Kuldeep, Ajay and Gopal, while

CRL.A. 502/2003 & CRL.A. 528/2004 Page 5 of 29

separate charge under Section 212 IPC was framed against accused

Ishwar. They pleaded not guilty and claimed trial.

11. In order to substantiate the charge, prosecution examined 22

witnesses. Statements of accused were recorded under Section 313 of

the Code of Criminal Procedure, 1973 [“Cr.P.C.”], wherein, they

denied all the incriminating evidence appearing on record against

them. They preferred not to lead any evidence in their defence.

12. Vide judgment dated 05

th

April, 2003, the learned Trial Court

convicted the accused Kuldeep for the offence punishable under

Section 302/201 IPC and accused Ishwar under Section 212 IPC.

Accused Ajay and Gopal were given the benefit of doubt and were

accordingly acquitted.

13. The learned Trial Court was of the view that the recovery of

scooter of the deceased and country made pistol is admissible against

Kuldeep under Section 27 of the Evidence Act, the country made

pistol was further connected by the report of Ballistic Expert with the

empty cartridge recovered at the spot and with the bullet found in the

body of the deceased. According to the learned Trial Court, such

evidence of the prosecution cannot be discarded and there was nothing

which was in contradiction to the hypothesis of innocence of accused

Kuldeep, and therefore, held that the case of the prosecution against

accused Kuldeep stands fully proved.

14. With regard to accused Ishwar, the learned Trial Court found

that the recovery of country made pistol, the scooter of the deceased

and the blood stained clothes were made from his house. The scooter

of the deceased was without a number plate and was not such a small

CRL.A. 502/2003 & CRL.A. 528/2004 Page 6 of 29

thing which could have hidden anywhere unnoticed. Accused Ishwar

therefore cannot claim that he had no knowledge about these articles,

and thus, inferred that accused Ishwar had full knowledge about the

commission of offence and that he was concealing and shielding the

real culprits and the incriminating articles connected with the alleged

offence with intention to screen the actual offender from legal

punishment.

15. As far as co-accused Ajay and Gopal are concerned, the learned

Trial Court found that the only evidence against them was the

recovery of their blood stained clothes, which were not corroborated

by any other circumstances to connect them with the offences alleged

against them.

16. Vide order on sentence dated 19

th

April, 2003, accused Kuldeep

was sentenced with imprisonment for life for the offence punishable

under Section 302 with fine of Rs. 20,000/-, and in default, to undergo

Rigorous Imprisonment for 02 years. He was sentenced to

imprisonment for 05 years with fine of Rs. 5,000/- under Section 201

and in default, was directed to undergo 06 months Rigorous

Imprisonment. Convict Ishwar was sentenced with Rigorous

Imprisonment for 04 years with fine of Rs. 10,000/- under Section 212

and in default of payment of fine, he was directed to undergo 01 year

Rigorous Imprisonment.

17. Feeling aggrieved, the appellants have preferred the present

appeals. The sentence awarded to the appellants Ishwar and Kuldeep

was suspended vide orders dated 21

st

January, 2004 and 14

th

February,

2006, respectively.

CRL.A. 502/2003 & CRL.A. 528/2004 Page 7 of 29

Submissions on behalf of Appellant Kuldeep @ Kallu in CRL.A.

528/2004

18. Learned counsel appearing on behalf of appellant Kuldeep @

Kallu submitted that the impugned judgment suffers from serious

inconsistencies and improbabilities, rendering the conviction of the

appellant unsustainable in law. It was contended that the prosecution

case, insofar as the present appellant is concerned, is based entirely on

circumstantial evidence, and no direct evidence whatsoever has been

brought on record to establish that it was the appellant who fired upon

or caused the death of Constable Rambir.

19. Learned counsel submitted that the prosecution itself projected

a case of joint involvement of several accused persons and sought to

attribute motive and active participation to more than one accused.

However, despite this, the learned Trial Court proceeded to convict

the present appellant while acquitting the other accused persons

without properly recording a convincing distinction in respect of the

incriminating circumstances.

20. Learned counsel further submitted that the motive, as sought to

be projected by the prosecution, cannot be attributed to the present

appellant. It was argued that even if the prosecution version is taken at

face value, the alleged grievance or prior animosity was far stronger, if

at all, in the case of the co-accused persons than in the case of the

present appellant. It was stated that motive assumes greater

importance in cases of circumstantial evidence and in support of his

argument, the learned counsel relied upon Shankar Vs. State of

Maharashtra, (2023) 19 SCC 553 and Vaibhav Vs. State of

CRL.A. 502/2003 & CRL.A. 528/2004 Page 8 of 29

Maharashtra, (2025) 8 SCC 315.

21. Referring to the disclosure of accused Gopal, it is submitted that

prosecution itself attributed motive to the co-accused Gopal rather

than the appellant Kuldeep. Kuldeep had no independent motive, no

previous animosity against the deceased to commit his murder.

22. It was next submitted that the only incriminating circumstance

against the appellant Kuldeep is the alleged recovery of his election

identity card from a place approximately five feet away from the dead

body. Learned counsel argued that this circumstance has been given

undue weightage by the learned Trial Court.

23. Learned counsel contended that even assuming that the election

identity card was indeed recovered from the vicinity of the dead body,

such recovery could, at the highest, suggest possible presence of the

appellant at or around the area of incident. It was submitted that mere

presence of appellant by itself is not sufficient to establish the

commission of the crime by him.

24. According to learned counsel, despite the importance assigned

to this alleged recovery, no photograph of the identity card at the spot

has been produced, which materially weakens the reliability of this

circumstance. Learned counsel submitted that where the entire case

rests upon circumstantial evidence, each link must be proved with

utmost certainty, and an unsupported assertion regarding recovery of

an identity card cannot be elevated to the status of a conclusive

incriminating circumstance. It was argued that in cases of

circumstantial evidence, the chain of circumstances must remain

unbroken and must only point towards the guilt of the accused. In

CRL.A. 502/2003 & CRL.A. 528/2004 Page 9 of 29

support, reliance is placed on Prakash Vs. State of Rajasthan, (2013)

4 SCC 668 and Raju Vs. State of Rajasthan, (2024) 14 SCC 444.

25. It was further submitted that the shirt of accused Kuldeep was

sent to FSL for forensic examination to determine the presence of

blood. The FSL Report, even though, indicates the presence of human

blood on the shirt, does not confirm the blood group, and therefore,

forensic report does not support the prosecution case.

26. The learned counsel further argued that the learned Trial Court

convicted the appellant only on the ground of recovery of weapon of

offence and the scooter of the deceased at his instance. It was argued

that the alleged recovery, may at best, attribute knowledge to the

accused but does not establish that the appellant actually used the gun

and committed the crime. There is no clinching evidence, like his

fingerprints on the said weapon to fully establish that the appellant

used the recovered weapon. In support, reliance was placed on

Rajendra Singh and Ors. Vs. State of Uttaranchal, 2025 SCC Online

SC 2148.

27. It was submitted that the learned Trial Court failed to properly

appreciate that the case against the appellant is essentially built on

circumstantial evidence and that in a case resting solely on

circumstantial evidence, the Court is required to ensure that the chain

is so complete that it excludes every possible hypothesis consistent

with innocence. According to learned counsel, in the present case,

such a complete chain is conspicuously absent. On these submissions,

learned counsel prayed that the CRL.A. 528/2004 be allowed and the

conviction and sentence of appellant Kuldeep @ Kallu be set aside

CRL.A. 502/2003 & CRL.A. 528/2004 Page 10 of 29

and he be acquitted of all charges.

Submissions on behalf of Appellant Ishwar in CRL.A. 502/2003

28. Learned counsel appearing on behalf of appellant Ishwar

assailed the impugned judgment primarily on the ground that his

conviction under Section 212 IPC is founded on conjecture and

surmises.

29. It was submitted that the entire prosecution case against Ishwar

is that certain incriminating articles, namely the scooter of the

deceased, the weapon of offence (desi katta), and blood-stained

clothes, were recovered from his house. It was contended that even if

such recoveries are assumed for the sake of argument, the same do not

automatically establish the mens rea or conscious harbouring required

under Section 212 IPC.

30. It was further argued that the prosecution has failed to prove

that the appellant had knowledge or reason to believe that the persons

allegedly visiting or staying at his premises had committed the murder

of a police constable. Learned counsel submitted that this essential

mental element cannot be presumed merely because the prosecution

asserts recovery of certain articles from a premises allegedly

associated with the appellant Ishwar.

31. Learned counsel strongly contended that the recovery

proceedings are wholly doubtful as there was no public witness

associated at the time of the alleged recovery. It was further submitted

that even the local police station of the area where the alleged

recovery was made was not informed in advance that the investigating

team from Delhi had arrived there for apprehension and recovery

CRL.A. 502/2003 & CRL.A. 528/2004 Page 11 of 29

proceedings.

32. It was further argued that the appellant Ishwar was not arrested

from his house at all. According to the defence, the appellant was

apprehended approximately three kilometres away from his residence,

while he was returning from work. This, according to learned counsel,

undermines the prosecution theory that he was found in possession of

or had conscious control over the recovered articles.

33. It was submitted that the appellant had no occasion to know

whether any person had visited his residence in his absence, and that

the prosecution has not established that he was physically present at

the time the alleged concealment took place.

34. Learned counsel argued that Section 212 IPC requires a

conscious act of harbouring or concealment, coupled with knowledge

of the offence committed by the principal offender. It was urged that

even if it were assumed that some person had come to the appellant’s

house, the mere fact of their presence cannot establish criminal

liability unless it is shown that the appellant Ishwar knew that they

had committed the murder of a police officer or that he intentionally

provided shelter to them to screen them from punishment.

35. It was also submitted that the appellant Ishwar had no criminal

antecedents, no independent motive, and no personal grudge against

the deceased. Learned counsel argued that the prosecution has failed

to show why the appellant would voluntarily expose himself to grave

criminal liability by harbouring such offenders.

36. Learned counsel contended that the learned Trial Court erred in

convicting the appellant merely because the house was linked to him,

CRL.A. 502/2003 & CRL.A. 528/2004 Page 12 of 29

without first establishing the essential legal ingredients of conscious

harbouring, guilty knowledge, and intention to protect the offenders. It

was therefore submitted that the appeal CRL.A. 502/2003 be allowed

and the conviction of Ishwar under Section 212 IPC to be set aside.

Submissions on behalf of State

37. Per contra, learned Additional Public Prosecutor [“APP”] for

the State supported the impugned judgment, passed by the learned

Trial Court, stating that conviction is based on a well-reasoned finding

upon due appreciation of evidence.

38. Learned APP submitted that the deceased Constable Rambir

was on official duty at the relevant time, and that the prosecution has

established that he was intercepted and murdered while discharging

his public duty. It was submitted that the body of the deceased was

found near Rajokri Pahari and the investigation at the scene led to the

recovery of certain articles including the election identity card of

accused Kuldeep, which was recovered from the vicinity of the dead

body. It was submitted that this was not an isolated recovery and that

once the election identity card of accused Kuldeep was found near the

body, the investigating agency naturally proceeded to verify his

whereabouts and movements.

39. Learned APP submitted that the police thereafter went to the

residence/location of Kuldeep and found that he had gone to Gurgaon

at the house of accused Ishwar, and thereafter the accused persons

were apprehended. This conduct, as per learned APP further

reinforced the prosecution case and connected the appellant Ishwar

with the subsequent recoveries.

CRL.A. 502/2003 & CRL.A. 528/2004 Page 13 of 29

40. It was further submitted that the prosecution has also proved

recovery of the scooter of the deceased, which, though unnumbered,

bore clear identifying features including the logo/mark of Delhi Police

and the name of the constable written upon it, thereby leaving no

doubt as to its identity. It was argued that the recovery of scooter from

the house of accused Ishwar is a highly incriminating circumstance

and cannot be dismissed as accidental.

41. Learned APP also submitted that the prosecution recovered the

desi katta, and the ballistic report confirmed that the same as the

weapon of offence. The ballistic report corroborated the prosecution

version regarding use of that firearm in the commission of the offence.

Learned APP further submitted that the recovery of blood-stained

clothes from the same house is another important circumstance which

links the accused persons with the commission of the offence and the

subsequent attempt to screen themselves from punishment.

42. The cumulative effect of the circumstances, it was argued,

forms a complete chain pointing only towards the guilt of the accused.

In response to the appellant Kuldeep’s argument regarding motive,

learned APP submitted that in a case where the chain of circumstantial

evidence is complete, motive assumes a secondary role. It was argued

that even if the defence seeks to suggest that some co-accused may

have had a stronger motive, that by itself does not exonerate the

present appellants where independent incriminating circumstances

stand proved against them.

43. The learned APP argued that the absence of photograph of the

election identity card does not weaken the prosecution’s case, as

CRL.A. 502/2003 & CRL.A. 528/2004 Page 14 of 29

recovery has been duly established through police testimonies and the

seizure memo. Regarding the white shirt and the forensic report, it was

contended that the prosecution cannot be discredited merely because

blood group was not found on the same. The Court, it was

emphasized, should assess the evidence as a whole rather than

focusing on isolated aspects of the case.

44. In response to the submissions advanced on behalf of appellant

Ishwar, learned APP submitted that the offence under Section 212 IPC

is fully made out from the evidence on record. It was argued that the

concealment of the deceased’s scooter, weapon of offence, and blood-

stained clothes at the premises linked to Ishwar clearly demonstrates

knowledge, assistance, and intention to protect the offenders.

45. It was further argued that the absence of public witnesses is not

fatal where the police witnesses are otherwise reliable and the

recoveries are duly documented. It is thus submitted that the learned

Trial Court rightly appreciated the evidence and convicted the

appellants, and therefore, the appeals are liable to be dismissed being

devoid of merit.

Analysis and Reasoning:

46. We have considered the rival submissions. There is no dispute

to the homicidal nature of the death. On receipt of DD no. 9A (Ex. PW

10/A4) regarding the information that a body of a police constable was

lying near Rajokri Pahari, SI Prahlad Yadav (PW-8) along with

Constable Jalvir Singh were the first ones to reach the spot. They were

followed by Inspector Mohd. Iqbal (PW-20), SHO, Police Station

Vasant Kunj along with SI Balram (PW-6), where they found the body

CRL.A. 502/2003 & CRL.A. 528/2004 Page 15 of 29

of the deceased Constable in uniform lying in the pit. They recovered

a name plate bearing the name of Constable Rambir Singh under the

body. The body was sent to Safdarjung Hospital for post mortem

through SI Subey Singh (PW-5). The body was later identified by

Mani Ram (PW-1), older brother of Rambir Singh.

47. Dr. Chanderkant (PW-10) who conducted the post mortem

examination on the body of Constable Rambir Singh found 18 ante

mortem injuries and according to him, the injuries number 5, 6 and 7

were caused by fire arm. He proved the post mortem report Ex.

PW10/A. As per his opinion, the cause of death was shock,

haemorrhage, head injury and fire arm injury. He deposed that injuries

number 5, 15, 16 and 17 each individually and collectively were

sufficient to cause death in ordinary course of nature.

48. PW-10 Dr. Chanderkant, who had conducted the post mortem,

was not cross-examined. The defence did not even suggest that the

injuries recorded in the post mortem report could be self-inflicted or

accidental. Even, the nature of injuries do not admit of such a

possibility. Hence, the medical evidence leaves no room for doubt that

the death of Constable Rambir Singh was homicidal in nature.

49. The entire case of the prosecution rests on circumstantial

evidence as there is no eye witness of the occurrence. The prosecution

relies upon the following circumstances to prove the guilt of accused

Kuldeep:

i. Recovery of Election ID Card (Ex. PW 6/A) belonging to

the accused Kuldeep from the place of occurrence.

ii. Recovery of the weapon of offence, that is, the country

CRL.A. 502/2003 & CRL.A. 528/2004 Page 16 of 29

made pistol (Ex. PW 4/G), shirt of accused Kuldeep (Ex.

PW 4/C) having blood mark on it and scooter of

Constable Rambir Singh (Ex. PW 4/B) from the house of

accused Ishwar.

iii. The FSL result (Ex. PW 18/B) confirming the presence

of human blood on the shirt of accused Kuldeep.

iv. Ballistic report (Ex. PW 21/A) which proves that the

fired empty cartridge recovered from the spot was fired

from the country made pistol.

50. It is well settled law that where the case rests entirely on

circumstantial evidence, the chain of evidence must be complete so

that every hypothesis of innocence is excluded but the one proposed to

be proved, and that such circumstance must show that the act has been

done by the appellants/accused. In the light of the said principle, we

shall now analyse as to whether the prosecution has been able to prove

the guilt of against the appellants.

51. In order to prove the circumstance of recovery of the election

ID card of Kuldeep, the prosecution relies upon the testimonies of

PW-6 SI Balram, PW-8 SI Prahlad Yadav, PW-16 Inspector SK Patil

and PW-20 Inspector Mohd. Iqbal. They all consistently deposed that

the election ID card in the name of Kuldeep Singh was lying about

five feet from the north side from the body. There is no cross-

examination worth the name challenging the recovery of the election

ID card from the spot.

52. PW-13 Babulal, LDC from the election office proved that the

CRL.A. 502/2003 & CRL.A. 528/2004 Page 17 of 29

election ID card Ex. P1 was issued by the Election Commission in the

name of Kuldeep son of Kishan Chand. The deposition of PW-13 thus

proves that the recovered election ID card belonged to accused

Kuldeep.

53. The only challenge raised before us is that the election ID card

is not visible in any of the photographs taken at the spot which,

according to the learned defense counsel, makes the recovery doubtful

and there is a possibility that ID card has been planted by the IO.

54. We are not impressed by the aforesaid argument of the defence.

Even though the election ID card is not visible in any of the

photographs of the spot, we find that rukka Ex. PW 20/A, which was

prepared at the spot itself by PW-20, records the factum of recovery of

election ID card bearing number DL/03/031/234248 in the name of

Kuldeep Singh son of Kishan Chand from the spot. The rukka was the

earliest document prepared by the Investigating Officer at the spot.

The mention of recovery of election ID card of Kuldeep in the rukka

and seizure memo prepared at the spot, much before the arrest of

accused Kuldeep, rules out the possibility of planting of election I

card.

55. In his statement recorded under Section 313 Cr.P.C., accused

Kuldeep did not render any satisfactorily explanation of the recovery

of his election ID card from the spot. He simply denied that the

recovery of election ID and just stated that the same was planted. If

election ID card was not recovered from the spot, it was incumbent

upon the accused to explain how the police got possession of his ID

card. Simply saying that the ID card was planted is not sufficient.

CRL.A. 502/2003 & CRL.A. 528/2004 Page 18 of 29

Hence, in our view prosecution has been able to successfully prove the

recovery of election ID card of accused Kuldeep from the place of

occurrence.

56. The second circumstance relates to the recovery affected at the

instance of appellant Kuldeep. The evidence reveals that pursuant to

his disclosure statement Ex. PW-4/A, the investigating agency

recovered the country made pistol (Desi Katta), the scooter belonging

to the deceased, and blood stained clothes of Kuldeep.

57. PW-19 HC Ram Kumar deposed that on the night intervening

26

th

/27

th

March, 1999, he along with Constable Rambir (deceased) and

Constable Himmat Singh were on picket duty near Rajokri Oil Mill

from 12.00 midnight to 4.00 am. He further deposed that on the

instructions of the SHO, Constable Rambir went to take round on his

scooter towards Pahari, but did not return. Thereafter, the body of

Constable Rambir was recovered from the pit of old crusher, but his

scooter was not found there.

58. PW-16 Inspector SK Patil, the then Additional SHO, Police

Station, Vasant Kunj, deposed that on 28.03.1999, while he along with

SI Prahlad Singh, ASI VP Singh, HC Vijay Pal and other staff

members had gone to Rajokri Pahadi area in connection with the

investigation of this case, they received a secret information that

Kuldeep, who was absconding from his house, had gone to Rajindera

Park, Gurgaon at the house of Ishwar Singh with his luggage. Upon

receipt of this information, they reached at Gurgaon and tried to

ascertain the house of the Ishwar in Rajindera Park. However, the

house of Ishwar in kachi colony was found locked. He deposed that

CRL.A. 502/2003 & CRL.A. 528/2004 Page 19 of 29

they kept a watch and at about 3/3:15 PM, they spotted three boys

coming towards the house of Ishwar. When they gave signals to them

for stopping, they tried to escape. They managed to apprehend

Kuldeep and Ajay but the third boy named Darshan managed to

escape. He further deposed that both the apprehended accused were

separately interrogated. Accused Kuldeep initially denied his

involvement but upon being shown his photo ID card, he admitted his

guilt. Both accused were arrested and were brought to Police Station

Vasant Kunj. Upon interrogation they gave separate disclosure

statements Ex. PW 4/A and Ex. PW 8/C. He further deposed that

pursuant to the disclosure statements of the accused, they again

reached at Rajindera Park, Gurgaon at the house of Ishwar and at that

time, Ishwar and his wife were present at the house. He deposed that

accused Kuldeep led the police party in a room of the house and got

recovered a country made pistol which was lying in a brass tokari

placed on the tand. He prepared the sketch of the pistol which is Ex.

PW 4/F, whereafter the pistol was sealed in a parcel with the seal of

MI and taken into possession vide memo Ex. PW 4/G. PW-16 further

deposed that accused Kuldeep had also got recovered a scooter

without number plate belonging to deceased Rambir Singh. On the

front portion of the scooter ‘DP’ and ‘R.Sharma’ were written with

red paint. The scooter Ex. P7 was taken into possession vide memo

Ex. PW4/B.

59. PW-16 further deposed that accused Kuldeep had also got

recovered a white coloured shirt which was hanging with a wire in the

courtyard after wash. They spotted some washed blood stains on the

CRL.A. 502/2003 & CRL.A. 528/2004 Page 20 of 29

shirt. The shirt was sealed in a parcel and taken into possession vide

memo Ex. PW 4/C.

60. PW-4 SI V.P. Singh and PW-8 SI Prahlad Yadav, who were

also the witnesses of recovery, supported the testimony of PW-16 and

their testimonies are more or less the same, as deposed by PW-16.

61. In cross-examination PW-16 stated that at the time of arrest of

accused persons, the Gurgaon Police was not informed. He denied the

suggestion that accused Kuldeep made no disclosure statement or that

no recovery was effected at his instance. PW-8 SI Prahlad Yadav in

his cross-examination stated that the disclosure statement of the

accused Kuldeep was recorded first followed by that of accused Ajay.

According to him, the disclosure statement of accused Ajay was

recorded half an hour after recording the disclosure statement of

accused Kuldeep. He admitted that the house of Ishwar was in

Haryana which is outside the jurisdiction of Delhi. He admitted that

they did not obtain any warrant to enter into or to make search from

the house. He stated that when they reached the house of accused

Ishwar, the house was lying open. He further stated that they had

requested some passersby, but none of them joined the investigation.

He confirms that Ishwar and his wife were present in the house. In

further cross-examination, PW-8 stated the accused Kuldeep in the

custody of the police, entered into the house of Ishwar. First of all, the

country made pistol was recovered from the house on the pointing out

of Kuldeep. Thereafter, accused Kuldeep got recovered the scooter

and his shirt hanging on a wire in the courtyard. Thereafter, accused

Ajay got recovered his clothes from the room of the house. He further

CRL.A. 502/2003 & CRL.A. 528/2004 Page 21 of 29

stated that 2-3 persons from the neighbourhood of the house were also

requested to join the investigation but they declined. He could not tell

their names. He stated that no notice was give to them upon their

refusal. In further cross-examination, he stated that scooter was parked

inside the room from which the country made pistol was recovered.

He denied the suggestion that the accused did not make any disclosure

statement or that no recovery was effected at his instance.

62. On perusal of the testimonies of the recovery witnesses, it is

evident that such testimonies are cogent and straightforward. Nothing

material has been pointed out from the cross-examination which may

affect their credibility.

63. Sections 25 and 26 of the Evidence Act, 1872 stipulates that

confession made to police officer is inadmissible in evidence. Further,

Section 27 is an exception to Sections 25 and 26 and serves as a

proviso to both these sections. Section 27 of the Evidence Act

partially lifts the ban to the admissibility of the confession inasmuch

as the statement, whether confession or not, is allowed to be given in

evidence but the portion, only which distinctly relates to a discovery

of fact, is admissible. The discovery of the fact includes the object

found, the place from which it is produced and the knowledge of the

accused as to its existence.

64. The evidence clearly proves that the recovery of the scooter

without number plate on which Delhi Police and R. Sharma was

written with red paint, the recovery of country-made pistol and the

shirt of Kuldeep was a direct consequence of information supplied by

the accused Kuldeep. When the accused himself leads the police to get

CRL.A. 502/2003 & CRL.A. 528/2004 Page 22 of 29

the scooter, country made pistol and the shirt recovered, requirement

of discovery stands satisfied. Absence of corroboration from

independent public witnesses is not fatal. In Appabhai And Anr. Vs.

State of Gujrat, AIR 1988 SC 696, the Supreme Court recognised the

practical difficulties in securing public witnesses and held that the

trustworthy official testimony is sufficient. In the present case, we find

that the testimonies of police witnesses with regard to recovery to be

consistent and straight forward. The prosecution has therefore, been

able to prove the aforesaid recovery at the instance of accused

Kuldeep.

65. The recovery of missing scooter of the deceased at the instance

of appellant Kuldeep is a significant circumstance. It establishes that

he not only participated in the crime, but also dealt with the property

of the deceased after the commission of the offence. The fact that the

scooter was removed from the scene of crime and later recovered at

the instance of appellant Kuldeep, clearly indicates his involvement

and an attempt to screen the offence.

66. The recovery of weapon of offence, that is, country made pistol

(Desi Katta) further strengthens the prosecution case. The same was

sent to FSL. The FSL Report Ex. PW-21/A proves that the country

made pistol was in working order and the empty cartridge (EC-1),

recovered from the spot, was fired through the country made pistol.

The recovery of the empty cartridge from the scene of crime and the

subsequent linkage with the recovered weapon thus establishes a

direct connection with the appellant and points out the manner in

which the offence was committed.

CRL.A. 502/2003 & CRL.A. 528/2004 Page 23 of 29

67. The shirt recovered at the instance of appellant Kuldeep was

sent to FSL. The FSL Result Ex. PW-18/B confirms the presence of

human blood on the shirt. However, it does not confirm the blood

group. The argument, that ‘No reaction’ or inclusive result with regard

to the blood group may weaken the prosecution case, cannot be

accepted. Rather, it was for the accused to explain the presence of

blood on the shirt recovered at his instance. Moreover, this is not the

sole circumstance against appellant Kuldeep, which may be regarded

as insufficient.

68. As per prosecution narrative, the motive for commission of

murder was that Constable Rambir was keeping surveillance on the

activities of the accused persons, which led to hostility and provided

reason for his murder. However, no evidence was led to prove the

same. The motive remained embedded only in the disclosure

statement of the accused, which is inadmissible in evidence. Motive is

an emotion which impels a person to commit the crime. It is an

important link in a case based on circumstantial evidence for proving

the guilt of the accused, and therefore, the absence of motive in certain

circumstances may weigh in favour of the accused. The Hon’ble

Supreme Court in the case of Subhash Aggarwal Vs. State of NCT of

Delhi, 2025 INSC 499, after considering various decisions, observed

as under:-

“20. The declaration in the cited decisions

and the decisions relied on therein, is to the

effect that if the case is built solely upon

circumstantial evidence, absence of motive

will be a factor that weighs in favour of the

accused. Just as a strong motive does not by

CRL.A. 502/2003 & CRL.A. 528/2004 Page 24 of 29

itself result in a conviction, the absence of

motive on that sole ground cannot result in an

acquittal. When the eyewitnesses are not

convincing, a strong motive cannot by itself

result in conviction, likewise when the

circumstances are very convincing and

provide an unbroken chain leading only to the

conclusion of guilt of the accused and not to

any other hypothesis; the total absence of a

motive will be of no consequence.”

69. The argument that the alleged motive emerging from the

disclosure statements point more towards Gopal then Kuldeep is, in

any event, not decisive. The disclosure statements are not substantive

evidence of motive. The learned Trial Court did not convict Kuldeep

solely on motive but on the basis of cumulative effect of the other

circumstances proved on record against him. Motive though relevant,

is not a sine qua none in every case. Even if, the other accused may

have had a stronger motive against the deceased, that by itself does not

exonerate Kuldeep, particularly, in the light of other circumstances

proved against him.

70. The contention of the defence that the other co-accused persons

have been acquitted, does not weaken the case against the appellant

Kuldeep. The evidence against him is specific and distinct. The

recovery of his identity card at the spot and the recoveries affected at

his instance are circumstances which directly implicate him and

distinguish his case from that of the acquitted accused.

71. Upon joining the circumstances proved, we find that the

recovery of election ID card from the spot gave clue to the

investigating agency that accused Kuldeep was involved in the

CRL.A. 502/2003 & CRL.A. 528/2004 Page 25 of 29

commission of crime. Following the same, accused Kuldeep was

apprehended on the basis of secret information near the house of

accused Ishwar. He later, made a disclosure statement, which led to

the recovery of country made pistol, scooter of the deceased and his

shirt from the house of accused Ishwar. The country made pistol has

been connected with empty cartridge recovered from the spot soon

after the occurrence.

72. In our view, the aforesaid circumstances, particularly the

recovery of election ID card of Kuldeep from the scene from crime,

subsequent apprehension of the accused, recovery of the deceased’s

scooter, recovery of weapon of offence and the recovery of blood

stained shirt, when considered cumulatively, they form a complete and

consistent chain pointing only towards the guilt of accused Kuldeep.

There is no other reasonable hypothesis emerging from the record

consistent with his innocence.

73. Insofar as appellant Ishwar is concerned, his case stands on a

different footing. He was not convicted as a principal assailant but

under Section 212 IPC for harbouring the offenders. The charge

framed against him states that he harboured the co-accused after

having knowledge or reason to believe that they had committed the

murder of a police constable and kept in his house the scooter of the

deceased and blood stained clothes with an intention to screen them

from legal punishment.

74. The evidence, certainly, shows that these incriminating articles,

that is, scooter of the deceased, weapon of offence and blood stained

clothes were recovered from the house of accused Ishwar in his

CRL.A. 502/2003 & CRL.A. 528/2004 Page 26 of 29

presence. The recovery of such articles cannot be regarded as

accidental or innocent.

75. The deceased’s scooter is not an ordinary article of a neutral

character. Even though, the scooter was not bearing the number plate,

it bore identifying features including the Delhi Police logo and the

name of the deceased Constable. Such article could not have

innocently or accidently found their way into the appellant’s premises

without raising suspicion. The concealment of the scooter of the

victim and the recovery of blood stained clothes and the weapon of

offence in the house of accused Ishwar is a strong circumstance that

accused Ishwar intended the evidence of commission of offence to

disappear with a view to screen the offender from legal punishment.

Section 212 IPC reads as under:-

“212. Harbouring offender- Whenever an

offence has been committed, whoever harbours

or conceals a person whom he knows or has

reason to believe to be the offender, with the

intention of screening him from legal

punishment,

if a capital offence-shall, if the offence is

punishable with death, be punished with

imprisonment of either description for a term

which may extend to five years, and shall also

be liable to fine;

if punishable with imprisonment for life, or

with imprisonment-and if the offence is

punishable with [imprisonment for life], or

with imprisonment which may extend to ten

years, shall be punished with imprisonment of

either description for a term which may extend

to three years, and shall also be liable to fine;

and if the offence is punishable with

imprisonment which may extend to one year,

and not to ten years, shall be punished with

imprisonment of the description provided for

CRL.A. 502/2003 & CRL.A. 528/2004 Page 27 of 29

the offence for a term which may extend to

one-fourth part of the longest term of

imprisonment provided for the offence, or with

fine, or with both.

[“Offence” in this section includes any act

committed at any place out of [India], which,

if committed in [India], would be punishable

under any of the following sections, namely,

302, 304, 382, 392, 393, 394, 395, 396, 397,

398, 399, 402, 435, 436, 449, 450, 457, 458,

459 and 460; and every such act shall, for the

purposes of this section, be deemed to be

punishable as if the accused person had been

guilty of it in [India].]

Exception.—This provision shall not extend to

any case in which the harbour or concealment

is by the husband or wife of the offender.”

76. Upon a plain reading of the Section, it is apparent that Section

212 of IPC applies to harbouring of a person who has actually

committed the offence. In order to bring home Section 212 IPC, the

prosecution must prove:-

(i) that the offence has been committed by the person

harboured,

(ii) that such offence is punishable with

a) death or imprisonment for life or imprisonment not

exceeding 10 years or imprisonment from 01 to 10 years,

(iii) that the accused has harboured or concealed the offender,

(iv) that the accused then knew him to be the offender or had

reason to believe him to be so, and

(v) that the accused thereby intended to screen such offender

from legal punishment.

77. There is no evidence in the present case to prove that accused

Ishwar had harboured accused Kuldeep. Accused persons were

CRL.A. 502/2003 & CRL.A. 528/2004 Page 28 of 29

admittedly not arrested from the house of accused Ishwar. No witness

from the neighbourhood or from the vicinity have been examined to

prove that accused Ishwar gave shelter to the accused persons in his

house on the fateful day. Thus, there is no evidence that accused

Ishwar had harboured the offenders in his house except in the referred

disclosure statement, which is inadmissible in evidence. The

ingredients of Section 212 IPC are, therefore, not attracted. However,

it is evident that accused Ishwar had facilitated the co-accused persons

to conceal the scooter of the victim, the blood stained clothes and the

weapon of offence in his house, which may attract Section 201 IPC

which provides punishment for causing disappearance of evidence of

offence to screen the offender. But, no such charge under Section 201

IPC was framed against accused Ishwar, and therefore, he cannot be

convicted for the offence under Section 201 IPC, which provides for

higher punishment than the one prescribed in Section 212 IPC.

Conclusion:

78. The chain of circumstances proved on record, leads to an

irresistible conclusion that appellant/accused Kuldeep alone

committed the murder of Constable Rambir Singh. We find no

infirmity in the impugned judgment of conviction of appellant

Kuldeep @ Kallu under Sections 302/201 IPC. The sentence imposed

is proportionate and commensurate with the offences committed. We,

therefore, find no ground to interfere with the Trial Court judgment

insofar as appellant Kuldeep @ Kallu is concerned, and hence, Crl. A.

528/2004 is accordingly dismissed. The conviction and sentence

awarded by the Trial Court against appellant Kuldeep @ Kallu is

CRL.A. 502/2003 & CRL.A. 528/2004 Page 29 of 29

hereby affirmed.

79. So far as accused Ishwar is concerned, Crl. A. 502/2003 is

allowed and the impugned judgment of the Trial Court dated 05

th

April 2003, thereby, convicting him under Section 212 IPC and the

Order on Sentence dated 19

th

April, 2003 is set aside.

80. Appellant Kuldeep @ Kallu is directed to surrender before the

Jail Superintendent within a week from today to serve the remaining

sentence. In the event of failure to surrender, appropriate steps shall be

taken by the State/Trial Court to ensure that the appellant Kuldeep @

Kallu is taken into custody to serve the remaining sentence.

81. Copy of this judgment be sent to the learned Trial Court and the

concerned Jail Superintendent for information and necessary action.

RAVINDER DUDEJA, J.

NAVIN CHAWLA, J.

May 26

th

, 2026/RM/AK