(Judgment) State Vs Dalip Kumar

FIR no.780/16
U/s 302 IPC
PS: Vijay Vihar

IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC)

(NORTH-WEST): ROHINI COURTS: DELHI

Session Case No.31/2017

CNR No. DLNW01-000436-2017

State

Vs.

Dalip S/o Sh. Ganaur Shah

R/o G-101, Som Bazar Road, Vijay Vihar,
Near Balaji Stationery Ph-II, Delhi ….....Accused.

FIR No. : FIR No.780/16

Police Station : Vijay Vihar
Under Section : 302 IPC

Date of committal to Sessions Court : 30.01.2017

Date on which judgment reserved : 18.04.2019
Date on which judgment pronounced : 18.04.2019

JUDGMENT

1. This is a case under section 302 Indian Penal Code, 1860 (IPC).

CASE OF THE PROSECUTION

2. On 24.09.2016, at about 5:00 pm, Rahul (the deceased) was seen alive in the com-
pany of the accused. On 25.09.2016 at about 8:05am, dead body of the deceased was recov-
ered from Vijay Vihar, Part-II, Park Near Khanna Meat. As such, in the evening/night of
24.09.2016, the accused committed the murder of the deceased by banging his head over a
stone and got recovered the mobile phone of the deceased on 27.09.2016.

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CHARGES

3. Charge under section 302 IPC was settled against the accused. The accused pleaded
not guilty and claimed trial.

PROSECUTION EVIDENCE

4. To prove its case, the prosecution has examined 17 witnesses.

PUBLIC WITNESSES

5. PW-3 Ashok Mandal deposed that on 25.09.2016, when he was parking his vehicle
in the Gobar Park, some rag-pickers children told him that a person was lying inside a
room in the park. Consequently, he went there and saw that blood was oozing out from the
face of the said person. He noticed that he had died. He immediately dialed phone number
100. Police reached there and took the appropriate action. Police recorded his statement.

6. PW-5 Rajender Singh (father of the deceased) deposed that he was his son who
along with his wife and two children was residing with them. Rahul did not return to the
house on 23.09.2016 and 24.09.2016. He had a plot no. J-87, Vijay Vihar-I where the
construction was going and Sanjay Rai (PW12) was doing the electric work there. PW12
telephoned him on Saturday i.e. on 24.09.2016 at about 2.00 pm and told that Rahul and
the accused had come together there and took water from there. He had gone to his said
plot in the evening at about 5.30 pm and then returned to his house of Mangol Puri. Rahul
did not return. He made call to Rahul at about 10.00 pm on Saturday night, however, his
phone was found switched off.

7. PW-5 further deposed that on 25.09.2016, some kids told that his son was lying

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PS: Vijay Vihar

dead in Gobar Wala Park. He immediately went to that park and saw that his son was dead.
Police officials were already present at the spot and shifted body of the deceased to the
hospital. After postmortem, dead body of the deceased was handed over to him for last
rites. He proved his identification statement Ex. PW5/A and receipt Ex. PW5/B.

8. PW5 also deposed that on 27.09.2016, he along with PW12 joined the investigation
with the police. They saw the accused near Aarti Medical Store in Vijay Vihar area and the
accused became perplexed on noticing him. He told the police that it was the accused with
whom his son Rahul was lastly seen. Police arrested the accused. The accused got
recovered mobile phone of Rahul from one drain (naali) near that medical store. Mobile
phone was of black color which was seized vide seizure memo Ex. PW5/C. The accused
also got recovered one stone and one blanket from same Gobar Wala Park and the same
were seized vide seizure memo Ex. PW5/D. The articles found during the search of dead
body were also seized vide memo Ex. PW5/E. He proved the seizure memo Ex.PW5/F.
After arrest, the police had gone to house of the accused. Mobile number of Rahul was
8375969860. He identified the mobile phone make Panasonic of black and grey colour
bearing IMEI No. 354968065026015 Ex. P1; one blue colour jeans. pant, blue colour shirt,
one pair of red colour socks, one brown colour underwear, one dark yellow colour banian
and one black colour sports shoes make Adidas belonging to his son Ex. P2; one blue
colour jeans pant and one grey colour shirt having black colour flower print, clothes of the
accused which were recovered in his presence Ex. P3; one red and grey colour blanket
recovered at instance of the accused from the place where the dead body was lying Ex. P4;
cemented brick recovered at instances of the accused from the place of occurrence Ex.P-5.

9. PW-7 Meena Devi deposed that the accused was her employee and on 23.09.2016,
24.09.2016, 26.09.2016 and 27.09.2016, the accused had not joined the duty. 25.09.2016
was closing day being Sunday.

10. PW-12 Sanjay Rai deposed that PW5 was his friend. He knew Rahul. On that day,
at about 5.00 p.m., Rahul along with the accused came there. On 24.09.2016, he was doing
electric wiring at the house of PW5 situated at J-87, Vijay Vihar, Delhi. It was Saturday.

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That day, the deceased and the accused came there and were appearing in drunken
condition. Rahul asked water from him which he gave. After taking water, they went back.
He came to know name of the accused when Rahul called him by the said name. At about
5.30 p.m., PW5 came at his house where he was working. He told him that Rahul along
with the accused come there and both were appearing in drunken condition, upon which,
PW5 made a telephonic call to Rahul and scolded him and also threatened him that he
would be sent to De-addiction Centre. After that, Rahul switched off his mobile phone.

11. PW-12 also deposed that on 25.09.2016, at about 8.00 a.m., he saw the crowd
outside the park as well as outside the room situated inside the said park. PW5 was also
there. On enquiry, PW5 told him that someone had murdered his son Rahul. Dead body of
Rahul was being taken by the police officials for Ambedkar Hospital. He along with PW5
accompanied the police officials to the hospital.

12. PW-12 further deposed that on 27.09.2016, at around 1.00 p.m., he received a call
from PW5 who called him at Shani Bazar. He immediately reached at Shani Bazar where
PW5 and some police officials met him. Police officials asked him if he could identify the
accused. He replied in affirmative. Thereafter, they along with police officials tried to
search the accused and when they reached at Som Bazar, Vijay Vihar Phase-II, he saw that
the accused was smoking. The accused on seeing them started moving from there. At his
instance, the police officials apprehended the accused. He identified the accused as the
person who had come to him along with the deceased Rahul on 24.09.2016 at about 5.00
p.m. Police officials interrogated and arrested the accused vide arrest memo Ex. PW10/A.
IO recorded disclosure statement of the accused.

13. PW-12 also deposed that at the instance of the accused, his clothes were recovered
which were seized vide memo Ex. PW5/F. At instance of the accused, one blanket and one
bloodstained cemented piece of brick were also recovered which were seized vide seizure
memo Ex. PW5/D. At the instance of the accused, mobile phone of deceased was recovered

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from the drain near Aarti Medical Store, Vijay Vihar Phase-I which was seized vide seizure
memo Ex. PW5/C. He identified the case property Ex. P1, Ex. P3, Ex. P4 and Ex.P-5.

POLICE WITNESSES

14. PW-1 HC Sandeep Kumar deposed that on 25.09.2016, at about 8.05 am, he
received the information that a person aged 30-35 years was lying dead in Vihay Vihar
Phase-II Park near Khanna Meat and was bleeding from face and nose. He recorded DD
no. 13A Ex. PW1/A to this effect. At about 2.55 pm, he got recorded FIR no. 780/16 Ex.
PW1/B and proved his endorsement on rukka Ex. PW1/C and certificate under Section 65B
Indian Evidence Act Ex. PW1/D.

15. PW-8 Ct Rakesh deposed that on 25.09.2016, he delivered copy of FIR to

concerned MM, DCP and Joint C.P.

16. PW-11 SI Akash Deep deposed that on 25.09.2016, on receipt of a call from control
room, he along with ASI Karambir (PW2) and other team members reached at a room
situated in the said part where PW15 along with other police officials met them. He
inspected the scene of crime and one dead body was found lying in the room of said park.
On his instruction, PW2 took photographs of the spot from different angles. He proved the
crime scene report Ex. PW11/A.

17. PW-2 ASI Karambir deposed that on 25.09.2016, he along with PW11 and other
staff reached at the spot where PW15 along with other police staff met them. They noticed
bloodstains on the face of dead body as well as on a piece of bricks joined with cement.
On the directions of PW11 and PW15, he took six photographs of the spot as well as of
dead body from different angles and proved the photographs Ex. PW2/A1 to A6 and the
negative strip of such photographs Ex. PW2/B.

18. PW-14 Ct. Dhara Singh deposed that on 25.09.2016, at about 8.05 am, PW15

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received PCR call. Thereafter, he along with PW15 reached at the spot and in a room in
the park, they found a dead body of a person aged about 32-35 years. The blood was
oozing out from the face and nose of the dead body. There were injury marks on the
forehead, ear, neck of the dead body. PW15 called the Crime team at the spot. Crime Team
inspected the scene of crime and Ct. Anil took the photographs of the spot from different
angles. The dead body was identified as that of Rahul. Thereafter, he took the dead body to
BSA Hospital for postmortem. PW5, uncle Bunty and Rahul (Mausera Bhai of the
deceased) identified the dead body in the hospital. IO got conducted the postmortem of the
dead body. From the search of dead body, three toffees, one tobacco packet and one
Shivling were recovered which were seized vide seizure memo Ex.PW5/E. PW15 prepared
rukka and handed over the same to him for registration of FIR which he did. After getting
the case registered, he came back to BSA hospital and handed over the copy of FIR and
original rukka to PW15. Dead body of the deceased was handed over to PW5 and uncle of
the deceased vide handing over memo Ex.PW5/B. IO seized the exhibits vide seizure
memo Ex.PW14/A.

19. PW-15 SI Prem Raj deposed on the lines as deposed by PW14 from receiving the
information till registration of FIR. He proved carbon copy of the application for
conducting the postmortem of the deceased Ex.PW15/A, carbon copy of Form No. 25.35
(1)(B) Ex.PW15/B. He deposed that he recorded statements Ex.PW15/C and Ex.PW15/D.
No eye-witness met him either at the spot or in the hospital, so he prepared rukka on DD
no. 13-A Ex.PW15/E. PW-15 also deposed that on 25.09.2016, after registration of FIR,
PW14 along with Inspector Vipnesh (PW16) came in the hospital. They search the accused
but no clue regarding accused was found. PW16 had seized the viscera of the deceased in
the hospital. PW16 deposited the case property in malkhana.

20. PW-16 Inspector Vipnesh deposed that on 25.09.2016, further investigation of this
case was assigned to him. He along with PW15 reached at the spot and inspected the spot.
He along with PW15 also reached the house of the deceased i.e. J-87, Vijay Vihar-I, Delhi
where PW5 met them and he made inquiry from him but he was not in a position to give
the statement. PW14 handed over four sealed parcels along with sample seal to him which

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FIR no.780/16
U/s 302 IPC
PS: Vijay Vihar

he seized vide seizure memo Ex.PW16/A. He recorded statement of PW15, Ct. Rakesh
(Special Messenger) Ct. Dara Singh and other witnesses.

21. PW-16 also deposed that on 27.09.2016, at about 2.00 pm, secret information was
received that the accused was present at Aarti Medical Store. He made a call to PW5 and
requested him to reach at Aarti Medical Store. Meanwhile, PW5 along with PW12 came
near Aarti Medical Store. He also deposed about the arrest of the accused and proceeding in
pursuance thereto including recoveries made at his instance. He deposed that during
investigation, he collected the CDR of mobile phone of the accused and placed the same on
the file.

22. PW-16 also deposed that he got deposited the exhibits in FSL, Rohini through Ct.
Jai Kishan. He obtained the FSL result along with the case property. Thereafter, stone was
sent to the doctor who conducted the postmortem of the deceased, for obtaining subsequent
opinion. PW7 handed over the attendance register in which the duty of the deceased was
marked. He seized the photocopy of the attendance register Ex.PW7/A. Later on, he
obtained the subsequent opinion Ex.PW16/B. He identified the case property Ex.P-1, Ex.P-
3, Ex.P-4 and Ex.P-5.

23. PW-10 HC Jitender deposed that on 27.09.2016, he joined the investigation along
with PW16 and deposed about the arrest of the accused on the lines as deposed by PW16.
He proved the arrest memo Ex. PW-10/A, personal search memo Ex.PW10/B and
disclosure statement Ex. PW10/C of the accused. The accused got recovered one black
coloured mobile phone make of Panasonic from the drain near said medical store. PW16
checked the same and found that there was no SIM in the said mobile. On inquiry, the
accused disclosed that he threw the SIM after breaking the same. IO seized the mobile
phone vide seizure memo Ex. PW5/C. Thereafter, the accused led them to the place of
occurrence and got recovered the stone and one blanket. IO seized the same vide seizure
memo Ex. PW5/D. IO prepared pointing out memo Ex. PW10/D. Thereafter, the accused
led them to his house at G Block, Som Bazar road, Vijay Vihar and got recovered jeans
pant, shirt and one belt. IO seized the same vide memo Ex. PW5/F. PW-10 identified the

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case property Ex. P1, Ex. P3, Ex. P4, Ex.P-5.

24. PW-4- Ct. Naveen proved the scaled site plan Ex. PW4/A.

25. PW-17 ASI Vijender Singh deposed that on 25.09.2016, PW16 deposited six sealed
parcels and two sample seals in malkhana vide entry no. 770/16 of Register no. 19
Ex.PW17/A. On 27.09.2016, PW16 deposited two sealed parcels and one mobile phone in
unseald condition vide entry no. 777/16 of Register no. 19 Ex.PW17/B. On 28.10.2016, he
sent sealed parcels to FSL, Rohini, Delhi through Ct. Jai Kishan vide RC No. 377/21/16
Ex.PW17/C. After depositing the above said pulandas at FSL, Ct. Jai Kishan handed over
him the receipt of FSL Ex.PW17/D. On 28.10.2016, he also sent sealed parcels to FSL,
Rohini, Delhi through Ct. Jai Kishan vide RC No. 378/21/16 Ex.PW17/E. After depositing
the above said pulandas at FSL, Ct. Jai Kishan handed over him the receipt of FSL
Ex.PW17/F.

26. PW-17 also deposed that on 13.06.2017, on the instructions of the IO, he handed
over one sealed parcels containing stone to hand over to Ct. Suresh for obtaining the
subsequent opinion vide RC no. 274/21/17. Ct. Suresh obtained the receipt of the same and
same was handed over to him. He proved copy of RC no. 274/21/17 Ex.PW17/G. Case
property remained intact and untampered while it remained in his custody.

27. PW-9 Ct Jai Kishan deposed that on 28.10.2016, on the instructions of IO, he took
five exhibits sealed vide RC No. 377/21/16 and four exhibits sealed along with sample seal
vide RC No. 378/21/16 for depositing the same at FSL Rohini. Accordingly, he deposited
the same and obtained the receipt from FSL. He handed over the FSL receipt to MHC(M).
Till the exhibits remained in his possession, no one was allowed to tamper with the same.

MEDICAL EVIDENCE

28. PW-6 Dr. Narayan Dabas, Senior Resident, Department of Forensic Medicine, BSA
Hospital, Rohini, Delhi deposed that on 25.09.2016, he along with Dr. Vijay Dhankar

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U/s 302 IPC
PS: Vijay Vihar

conducted the postmortem examination on the dead body of Rahul. He proved the post
mortem report Ex. PW6/A. During the postmortem examination, blood, urine, viscera,
clothes and blood on gauze were sealed and handed over to IO along with sample seal of
the department. PW-6 also deposed that as per such viscera report Mark PW6/B, no
common poison could be detected though the presence of ethyl alcohol was found in blood,
urine and viscera. Level of alcohol in blood was 16.3 mg/100 ml of blood. Even in view of
such viscera report, the opinion regarding the cause of death remained unchanged.

29. According to the subsequent opinion Ex. PW16/B, the injuries as mentioned in the
PM report Ex. PW6/A can be caused by the weapon “stone” examined.

FORENSIC EVIDENCE

30. PW-13 Soni Khampa, Junior Forensic Chemical Examiner (Biology), FSL, Rohini,
Delhi deposed that on 28.10.2016, five sealed parcels in connection with the present case
were duly received in the office of FSL Rohini for examination. On biological examination
of the exhibits, blood was detected on Ex.1, 2a, 2b, 2c and 4. Blood could not be detected
on Ex.2d, 2e, 2f, 3, 5a and 5b. On DNA examination of Ex.1, 2a, 2b, 2c and Ex.4. DNA
profile generated from source of Ex.2a, 2b and 2c was found to be matching with DNA
profile generated from the source of Ex.1. DNA profile could not be generated from the
source of Ex.4 due to degradation of sample. Hence, matching of Ex.4 with Ex.1, 2a, 2b
and 2c could not be done. She proved her report Ex.PW13/A.

STATEMENT OF ACCUSED

31. After completing the prosecution evidence, statement of the accused was recorded
under section 313 Code of Criminal Procedure, 1973 (CrPC) in which all the incriminating
evidence/material were put to him which he has denied. The accused has stated that he is
innocent and has been falsely implicated in this case.

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DEFENCE EVIDENCE

32. The accused has examined his mother Geeta (DW-1) in his defence.

33. I have heard the APP for the State and counsel for the accused and have perused the
material available on record.

MEDICAL EVIDENCE

34. PW-6 proved the post mortem report of the deceased Ex. PW6/A perusal of which
reveals that the following external injuries were found on the body of the deceased:

1. Multiple abrasions, reddish, present over outer aspect of right side of chest over an area
of 15 cm x 7 cm, varying in size from 2 cm x 1 cm to 0.5 X 0.2 cm.

2. Abraded contusion, reddish, measuring 6 x 2.5 cm present over the right mastoid, behind
the pinna of right ear.

3. Abraded contusion, reddish measuring 7 x 4 cm present over the head over the right pari-
etal eminence and occipital region.

4. Split laceration, reddish abraded margins, measuring 4 x 1.5 cm X bone deep present
over left side of forehead and eyebrow, with surrounding abraded contusion measuring 5 x
2 cm.

5. Split laceration, reddish abraded margins, measuring 1 x 0.2 x 0.1 cm present over left
upper eyelid with surrounding contusion measuring 1.5 x 1 cm.

6. Abraded contusion, reddish, measuring 6 x 2.5 cm present over the left side of head, 1
cm above the pinna of left ear.

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U/s 302 IPC
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7. Split laceration, reddish abraded margins, measuring 1 x 0.2 x 0.3 cm present over left
ear lobule and pinna.

8. Split laceration, reddish abraded margins, measuring 1.2 x 0.2 cm x bone deep present
over left mastoid, behind the pinna of left ear.

9. Split laceration, reddish abraded margins, measuring 1.5 x 0.2 x 0.3 cm present over left
angle of mouth and inner surface of mouth.

10. Multiple abraded contusion, reddish over an area of 15 x 9 cm present over left side of
face, varying in sizes from 0.3 x 0.2 cm to 3 x 1 cm, with underlying fracture of body of
mandible.

11. Multiple abraded contusion, reddish over an area of 2 x 1 cm present over the both nos-
trils of nose, varying in sizes from 0.3 x 0.2 cm to 06 x 0.3 cm.

12. Multiple abrasions, reddish, over an area of 6 x 3 cm present over the left side of neck,
varying in sizes from 0.3 x 0.2 cm to 3 x 1 cm.

13. Two abraded contusion, reddish, measuring 1 x 1 cm each present over the back on left
side in middle one thirds.

35. Perusal of the post mortem report Ex. PW6/A reveals that the death was caused due
to combined effect of cranio-cerebral damage and hemorrhagic shock, consequent to the
multiple injuries to the body. All the injuries were ante-mortem in nature, fresh in duration
prior to death and sustained due to blunt force trauma. Injury no. 2 to 4, 6 and 8 along with
the corresponding internal injuries were sufficient to cause death in the ordinary course of
nature individually as well as collectively. The pattern of injuries was consistent with as-
sault.

36. Perusal of the subsequent opinion Ex. PW16/B reveals that the injuries as men-
tioned in the PM report Ex. PW6/A can be caused by the weapon “stone” examined.

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In view of the foregoing discussions, it can be held that the injuries mentioned above were
inflicted on the deceased due to impact of the deceased with the stone Ex. P-5.

FORENSIC EVIDENCE

37. PW-13 proved the report Ex.PW13/A perusal of which reveals that on biological
examination, blood was detected on the stone Ex. 4 (Ex. P5). On DNA examination, DNA
profile could not be generated from the source of Ex.4 i.e. the stone due to degradation of
sample. Hence, matching of Ex.4 with Ex.1, 2a, 2b and 2c could not be done. However, as
held above, it stands proved that the stone Ex. P5 is the weapon of offence in the present
case. Hence, non generation of the DNA from the blood found on the said stone is of non
consequence.

38. In view of the foregoing discussions, the nexus between the nature of injuries
sustained by the deceased, their cause, the weapon of offence i.e. the stone and cause of the
death of the deceased stands proved.

39. Case of the prosecution is based on the circumstantial evidence and to prove its
case, the prosecution relied upon the last seen theory and the recoveries made at the
instance of the accused as stated.

LAST SEEN THEORY

40. APP for the State pleaded that on 24.09.2016, PW-12 was doing the electric work at
the plot of PW-5 situated at J-87, Vijay Vihar-I, Delhi where at about 5:00 pm, the deceased
along with the accused came and asked for water from PW-12 which he gave. Thereafter,
the deceased and the accused left that place. Next morning, the deceased was found dead.
As such, the deceased was lastly seen alive in the company of the accused and the accused
has failed to explain what happened with the deceased thereafter. Hence, the last seen the-

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ory applies against the accused. To prove the same, the prosecution examined PW-12 and
PW5.

41. On the contrary, counsel for the accused pleaded that in the morning of
25.09.2016, PW-5 and PW-12 noticed that dead body of the deceased was lying in the park
and the police officials were also there. However, their statement u/s 161 CrPC was
recorded on 27.09.2016 wherein they stated that the deceased and the accused had visited
the said plot of PW-5 on 24.09.2016 at 5:00 pm. Prosecution has failed to justify the delay
in recording their statement. As such, their testimony to this effect is not reliable in nature.
He also pleaded that even otherwise, the prosecution has failed to prove that the deceased
was murdered immediately after his visit with the accused at 5:00pm. Further, according to
the prosecution, o 25.09.2016 in the morning, it was noticed that the blood was oozing
from the nose and face of the deceased. It implies that the deceased was murdered in the
morning hours of 25.09.2016. Therefore, the last seen theory is not applicable against the
accused.

42. PW5 in his cross examination has shown his ignorance if the accused used to con-
sume liquor with the deceased about one year prior to the incident. Therefore, it can be in-
ferred that the accused and the deceased were known to each other much prior to the date
of incident.

43. In the present case, the FIR was lodged at the instance of SI Prem Raj (PW15) and
not on the complaint of PW5 or PW12. As evident from the record, both PW5 and PW12
saw the dead body of the deceased in the morning of 25.09.2016 and met the police offi-
cials, however, none of them informed the police that the deceased was lastly seen alive in
the company of the accused. In fact, they made the statement under section 161 CrPC to
this effect on 27.09.2016 and the prosecution has failed to give any justification for their
delay in making the statement which contained very vital information. Further, there is

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nothing on record to suggest that the accused was the suspect from 25.09.2016 to
27.09.2016 when the statement of PW5 and PW12 was recorded in the present case.

44. PW-12 in his testimony specifically deposed that he knew PW-5 and the deceased
prior to 24.09.2016 and on 24.09.2016, he was doing the electric wiring at the house of
PW-12 situated at J-87, Vijay Vihar-I, Delhi. That day, at about 5:00 pm, the deceased
along with the accused came there and they appeared to be in drunken condition. The de-
ceased asked for water from him which he gave. Thereafter, both of them left from there.
He identified the accused as the persons who had come along with the deceased that day
and deposed that he came to know about name of the accused as the deceased was calling
him by the said name i.e. Dalip.

45. As discussed above, PW12 has failed to justify the delay in making the statement
despite his availability and this fact raises a suspicion as to authenticity of his statement
and the testimony to this effect. Further, it is highly suspicious as to why PW12 remained
silent to this effect till 27.09.2016 though he knew PW5 and the deceased and remained
with him and also had the occasions to inform the police to this effect. As such, the state -
ment of PW12 to this effect is highly suspicious.

46. According to the prosecution, PW12 informed PW5 about the visit of the deceased
along with the accused at the said plot on 24.09.2016 at 5 pm. To this effect, in his cross
examination, PW12 deposed that he had not told PW5 telephonically that the deceased and
the accused came to him in drunken condition and the deceased had asked for water from
him. However, he told the said fact when PW5 came to his house at 5.30 pm. However, the
said fact is not mentioned in his statement u/s 161 CrPC. As such, he made a material im-
provement in his testimony to this effect.

47. To this effect, PW5 deposed that PW12 telephoned him on 24.09.2016 and in-
formed that the deceased and the accused had come to him at the said plot and took water

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from him. However, his statement u/s 161 CrPC is silent to this effect. Further, the said
statement is contrary to the statement of PW12 that he had not informed the said fact to
PW5 on telephone. As such, PW5 made a material improvement in his testimony. PW5 also
deposed that he received a telephonic call from PW-12 on 24.09.2016 at 5:30 pm and 30
minutes thereafter, he reached the said plot and met PW-12. However, according to PW12,
even at that stage, he had not informed the said facts to PW5. Further, if it is presumed for
the sake of arguments only that PW12 had given the said information to PW5 on
24.09.2016 itself, then it is highly suspicious as to why PW5 being the father of the de-
ceased remained silent to this effect till 27.09.2016. In view of the foregoing discussions, it
can be held that PW12 had not informed PW5 about the visit of the deceased along with
the accused at the said plot on 24.09.2016. Therefore, testimony of PW5 to this effect is not
reliable in nature.

48. In the judgment titled as “STATE vs. ASHISH @ NIRMAL& ANR.”, reported
in 2019 SCC Online Del 6923, the Delhi High Court held:

8. The law with regard to last seen theory came up for consideration in various cases and
has been succinctly elucidated in the case of Anjan Kumar Sarma vs State of Assam
reported in AIR 2017 SC 2617 wherein the Apex Court observed as under:-
“The circumstance of last seen together cannot by itself form the basis of holding
the Accused guilty of the offence. In the absence of proof of other circumstances, the
only circumstance of last seen together and absence of satisfactory explanation
cannot be made the basis of conviction. The other circumstances relied upon by the
prosecution were not proved and that the circumstances of last seen together along
with the absence of satisfactory explanation were not sufficient for convicting the
Accused.”

9. State of Karnataka v. Chand Basha reported in (2016) 1 SCC 501, wherein the Apex
Court held as under:

"14. ..... This Court has time and again laid down the ingredients to be made out by

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the prosecution to prove the "last seen together theory". The Court for the purpose
of arriving at a finding as to whether the said offence has been committed or nor,
may take into consideration the circumstantial evidence. However, while doing so,
it must be borne in mind that close proximity between the last seen evidence and
death should be clearly established....."

10. In State of Karnataka Vs. Chand Basha reported in 2015 (3) ACR 3439, wherein the
Apex Court has observed :

"This Court has time and again laid down the ingredients to be made out by the
prosecution to prove the 'last seen together' theory. The Court for the purpose of
arriving at a finding as to whether the said offence has been committed or not, may
take into consideration the circumstantial evidence. However, while doing so, it
must be borne in mind that close proximity between the last seen evidence and
death should be clearly established."

11. In Mahavir Singh v. State of Haryana reported in (2014) 6 SCC 716, the Apex Court
has observed:

"12. Undoubtedly, it is a settled legal proposition that last seen theory comes into
play in a case where the time-gap between the point of time when the accused and
the deceased were last seen alive and when the deceased was found dead (sic is
small). Since the gap is very small there may not be any possibility that any person
other than the accused may be the author of the crime...."

15. Before acting upon the testimony of PW-13, we deem it appropriate and proper to
discuss the testimonies of other material witnesses. PW-9, the complainant of the missing
child, in his cross examination category stated that he knew PW-13 Jai Narayan and on
13.07.2012 he searched his son in the entire area and the people in the area by and large
came to know that his son was missing. Strange enough the entire area knew about his

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missing son but PW13 Jai Narayan, who is also a relative of PW-9 did not turn to come
forward to tell that he had seen the missing child in the company of respondent No.1.
Further, it has emerged from the testimony of PW- 21 Ashish Chugh, a local resident of the
area that PW-13 Jai Narayan was searching the missing child since 13.07.2012. This
witness during his cross examination categorically stated that “Jai Narayan was also with
us while searching the child since 13.07.2012. Vol. Persons from the area were searching
for the child in the area. I did not see Jai Narayan searching on 13.07.2012 but on
14.07.2012 I saw him searching the child with other persons. I was with the complainant
Ranvir on 14.07.2012 while search for the child but Jai Narayan was not with us. Vol. We
had constituted separate team for search the child on different places. Jai Narayan was not
in my team on 14.07.2012 but I had seen him searching for the child.”

16. From the foregoing paragraph, an inference can easily be drawn that PW-13 was in
constant touch with the complainant since the missing of the child. Had he witnessed the
missing child going with the respondent No. 1 on a bicycle in the evening of 13.07.2012, he
would have immediately brought this fact to the notice of the complainant or the
investigating agency. Such failure of the part of PW-13 makes it very difficult for us to trust
and act upon his testimony.”

49. In view of the foregoing discussions, it can be held that PW12 had not informed
PW5 about the visit of the deceased along with the accused at the said plot on 24.09.2016
or even thereafter, though he was in constant touch with PW5 since 25.09.2016. PW12 had
not given the said information to the police also. Had the deceased and the accused visited
the said plot on 24.09.2016 and PW12 noticed their said visit, PW12 would have immedi-
ately brought this fact to the notice of PW5 or the investigating agency once he noticed the
dead body of the deceased in the morning of 25.09.2016. Such failure of the part of PW-12
makes it very difficult to trust and act upon his testimony. As such, in view of the testi-
mony of PW5 and PW12, the visit of the deceased along with the accused on the said plot
on 24.09.2016 is very doubtful.

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50. In the present case, in reply to the questions no.8 and 12 of his statement u/s 313
CrPC, the accused stated that he along with the deceased visited the said plot on
24.09.2016 at 5:00pm and had asked for the water from PW-12. Now the question arises as
to whether the said statement of the accused be treated as an admission of the said fact
though as held above, the testimony of PW5 and PW12 is highly doubtful to this effect.

51. In the judgment titled as “Raj Kumar Singh v. State of Rajasthan”, reported in
(2013) 5 SCC 722, the Supreme Court held:

30. In a criminal trial, the purpose of examining the accused person under Section 313
CrPC is to meet the requirement of the principles of natural justice i.e. audi alteram
partem. This means that the accused may be asked to furnish some explanation as regards
the incriminating circumstances associated with him, and the court must take note of such
explanation. In a case of circumstantial evidence, the same is essential to decide whether
or not the chain of circumstances is complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine the accused, and to seek his ex-
planation as regards the incriminating material that has surfaced against him. The circum-
stances which are not put to the accused in his examination under Section 313 CrPC, can-
not be used against him and have to be excluded from consideration.”

41. In view of the above, the law on the issue can be summarised to the effect that state-
ment under Section 313 CrPC is recorded to meet the requirement of the principles of natu-
ral justice as it requires that an accused may be given an opportunity to furnish explana-
tion of the incriminating material which had come against him in the trial. However, his
statement cannot be made a basis for his conviction. His answers to the questions put to
him under Section 313 CrPC cannot be used to fill up the gaps left by the prosecution wit-
nesses in their depositions. Thus, the statement of the accused is not a substantive piece of
evidence and therefore, it can be used only for appreciating the evidence led by the prose-
cution, though it cannot be a substitute for the evidence of the prosecution. In case the
prosecution evidence is not found sufficient to sustain conviction of the accused, the incul-
patory part of his statement cannot be made the sole basis of his conviction. The statement

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under Section 313 CrPC is not recorded after administering oath to the accused. There-
fore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence
Act, though the accused has a right if he chooses to be a witness, and once he makes that
option, he can be administered oath and examined as a witness in defence as required un-
der Section 315 CrPC. An adverse inference can be taken against the accused only and
only if the incriminating material stood fully established and the accused is not able to fur-
nish any explanation for the same. However, the accused has a right to remain silent as he
cannot be forced to become a witness against himself.”

52. In view of the above cited judgment, it can be held that since, the prosecution has
failed to discharge his initial onus, hence, the said statement of the accused cannot be
treated as an admission against him. Therefore, case of the prosecution that the deceased
along with the accused visited the plot on 24.09.2016 at 5.00 pm is highly doubtful.

53. Now presume for the sake of arguments only that the accused along with the de-
ceased visited the said plot on 24.09.2016 at 5.00 pm. Now it is to be ascertained as to
whether the last seen theory is applicable against the accused.

54. In the judgment titled as “State of Goa v. Sanjay Thakran”, reported in (2007) 3
SCC 755, the Supreme Court held:

31. …………….. It is a settled rule of criminal jurisprudence that suspicion, however

grave, cannot be substituted for proof and the courts shall take utmost precaution in find-
ing an accused guilty only on the basis of circumstantial evidence………..”

34. From the principle laid down by this Court, the circumstance of last seen together
would normally be taken into consideration for finding the accused guilty of the offence
charged with when it is established by the prosecution that the time gap between the point
of time when the accused and the deceased were found together alive and when the de-

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ceased was found dead is so small that possibility of any other person being with the de-
ceased could completely be ruled out. The time gap between the accused persons seen in
the company of the deceased and the detection of the crime would be a material considera-
tion for appreciation of the evidence and placing reliance on it as a circumstance against
the accused. But, in all cases, it cannot be said that the evidence of last seen together is to
be rejected merely because the time gap between the accused persons and the deceased last
seen together and the crime coming to light is after (sic of) a considerable long duration.
There can be no fixed or straitjacket formula for the duration of time gap in this regard and
it would depend upon the evidence led by the prosecution to remove the possibility of any
other person meeting the deceased in the intervening period, that is to say, if the prosecu-
tion is able to lead such an evidence that likelihood of any person other than the accused,
being the author of the crime, becomes impossible, then the evidence of circumstance of
last seen together, although there is long duration of time, can be considered as one of the
circumstances in the chain of circumstances to prove the guilt against such accused per-
sons. Hence, if the prosecution proves that in the light of the facts and circumstances of the
case, there was no possibility of any other person meeting or approaching the deceased at
the place of incident or before the commission of the crime, in the intervening period, the
proof of last seen together would be relevant evidence. For instance, if it can be demon-
strated by showing that the accused persons were in exclusive possession of the place
where the incident occurred or where they were last seen together with the deceased, and
there was no possibility of any intrusion to that place by any third party, then a relatively
wider time gap would not affect the prosecution case.

39. In the light of the factors that evidence regarding the recovery of the incriminating
materials from the accused persons has been discarded; that there has been sufficient time
gap between the instances when the accused persons were last seen together with the de-
ceased persons; and in the absence of any other corroborative piece of evidence to com-
plete the chain of circumstances to fasten the guilt on the accused couple, we are of the
opinion that the accused have been rightly given the benefit of doubt by the courts
below………….”

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55. Now the question arises as to when the deceased had died.

56. According to the PM report Ex. PW6/A, the post mortem of the body of the
deceased was conducted from 12.00 pm to 1.15 pm on 25.09.2006 and the time since death
was about one day. As such, as per the said report, the deceased died on 24.09.2016 at
about 1.15 pm. However, this is contrary to the case of the prosecution of itself because
according to the prosecution, the deceased was seen alive in the company of the accused on
24.09.2016 at 5.00 pm.

57. In the present case, the dead body of the deceased was noticed in the park on
25.09.2016 at about 8 am. According to PW3 and PW14, that time, the blood was oozing
from the nose and face of the deceased. Hence, it can be inferred that the deceased had died
in the early morning hours of 25.09.2016.

58. In view of the above cited judgments and foregoing discussions, it is not possible to
come to the conclusion that between the time the deceased was last seen alive at around
5.00 pm on 24.09.2016 in the company of the accused and the time his body was
discovered at about 8.00 am on 25.09.2016 the next morning, there was no possibility of
the deceased coming in contact with any person or persons other than the accused. The
prosecution has not been able to bring any evidence from which it could be inferred that
there was no possibility of any other persons being the author of the crime. As such, the
time gap is quite considerable, the circumstances of having been last seen together, even if
proved, cannot fasten the guilt on the accused.

ARREST OF THE ACCUSED

59. Case of the prosecution is that in pursuance to the secret information, on the identi-
fication of PW12, the accused was arrested vide arrest memo Ex.PW-10/A on 27.09.2016.
To prove the same, the prosecution examined PW-5, PW-10, PW-12 and PW-16.

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PW-16 in his testimony specifically deposed that on 27.09.2016 at about 2:00pm, he re-
ceived a secret information about the whereabouts of the accused. Accordingly, he called
PW-5 and requested him to reach at Aarti Medical Store. In response thereto, PW-5 along
with PW-12 reached there. At about 4:00pm, he along with the raiding party went towards
a street where the accused was sitting and was smoking. On seeing them, the accused got
perplexed and was over powered. Consequently, the accused was arrested. In his cross ex-
amination, no suggestion to the contrary was given by counsel for the accused. PW-5, PW-
10 and PW-12 also deposed on the similar line as to arrest of the accused. In their cross ex-
amination, no suggestion was given by counsel for the accused that the arrest memo
Ex.PW-10/A is a forged and fabricated document or the signature of the accused was
forcibly obtained on his arrest memo Ex.PW-10/A.

60. To this effect, the accused in response to the questions no.9, 15, 21 and 24 of his
statement u/s 313 CrPC admitted his arrest in the manner as deposed by the said witnesses.

61. In view of the foregoing discussions, it can be held that on 27.09.2016, the accused
was arrested vide arrest memo Ex.PW-10/A following due process of law.

RECOVERY

62. Case of the prosecution is that after arrest, the accused made the disclosure state-
ment Ex.PW-10/C and in pursuance thereto, the accused got recovered the following arti-
cles.

1. One stone i.e. the weapon of offence.

2. One blanket used by the accused to cover the body of the deceased.

3. One mobile phone of the deceased.

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4. The clothes worn by the accused at the time of incident.

63. As held above, the accused was arrested following due process of law.

64. PW-16 in his testimony specifically deposed that the accused made the disclosure
statement Ex.PW-10/C. In his cross examination, no suggestion was given that the accused
had not made the disclosure statement.

65. To this effect, PW-10 deposed on the similar lines as deposed by PW-16. In his
cross examination, PW10 deposed that the disclosure statement of the accused was
recorded by PW16 while sitting in the Santro Car and it borne his signature at point A. In
his cross examination, no suggestion to the contrary was given by counsel for the accused.

66. Further, the accused in reply to the questions no.15 and 21 of his statement u/s 313
CrPC admitted that he gave his statement to the police.

67. In view of the foregoing discussions, it can be held that after arrest, the accused
made the disclosure statement Ex.PW-10/C.

RECOVERY OF STONE AND BLANKET

68. APP pleaded that vide disclosure statement Ex. PW10/C, the accused disclosed
about usage of the stone and the blanket in the subject incident and that he had thrown the
mobile phone of the deceased. Thereafter, the accused got recovered the stone weighing
14-15 kg having blood stains from a room at Gobbar Wala Park and one blanket used by
him to cover the body of the deceased from that place and the same were seized vide
seizure memo Ex.PW-5/D from the scene of crime on 27.09.2016. Blood was detected on

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the said stone. As such, a fact was discovered from the disclosure statement of the accused
which was within his exclusive knowledge.

69. On the contrary, counsel for the accused denied the said pleas and pleaded that the
same were planted upon the accused.

70. Under section 27 of Indian Evidence Act, “fact discovered” is an information

supplied by the accused in his disclosure statement is a relevant fact and that is only
admissible in evidence if something new is discovered or recovered from the accused
which was not within the knowledge of the police before recording the disclosure statement
of the accused.

71. PW-3 in his cross examination deposed that when he reached at the spot, the dead
body of the deceased was not covered with any cloth. Police lifted one blood stained stone
from the spot and took the same with them.

72. PW5 in his cross-examination deposed that once he along with PW12 and 1or 2
persons reached at Gobarwala Park, the police officials were already present there and one
cemented brick and one blanket were lying near the dead body. Police had lifted the
cemented brick and the blanket and took them to the police station.

73. To this effect, PW12 in his cross-examination deposed that on 25.09.2016, once he
along with PW5 reached at Gobarwala Park, he noticed 25-30 persons and some police
officials over there. The dead body of the deceased was covered with a blanket. Police
lifted the blanket and the cemented piece of brick lying over there.

74. It is evident from the record that the crime team visited the spot and prepared the
crime team report Ex.PW11/A perusal of which reveals that once they visited the spot, they
noticed one plastered brick looked like a stone near the dead body of the deceased on
which some blood stains were noted. PW2 also deposed that they noticed a piece of bricks

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joined with cement having the blood stains.

75. PW14 in his cross-examination deposed that when he reached at the spot for the
first time, he saw the dead body covered with a blanket and that blanket was not taken to
the hospital along with the dead body.

76. PW15 in his cross-examination deposed that one blanket and one stone about 15-20
kg were lying at the spot and the stone was made up of cement and stone dust. The blood
appeared on the blanket but he was not sure. The blanket was removed from the dead body
by the official of the crime team and was kept near the dead body.

77. PW16 in his cross-examination deposed that on 25.09.2016 at 5 pm, once he

reached at the spot, he noticed one stone and one blanket inside the room situated in the
said park. However, blood was not visible on the stone. Blanket and the stone were not
seized by him on 25.09.2016. No police official was left by him to guard the spot from
25.09.2016 till 27.09.2016. PW-16 also deposed that the accused got recovered blood
stained blanket and stone on which he collided the head of the deceased.

78. It is evident from the testimony of PW-3, PW-5, PW-10, PW-12, PW-15 and PW-16
that when they visited the said park, they saw the stone and the blanket. It is also evident
from their testimony that the blood stains were appearing on the said stone. It is also
evident from the testimony of PW-16 that on 25.09.2016, at 5:00 pm, when he visited the
said park the said blanket and the stone were still lying there. According to PW16, the
accused got recovered the blood stained blanket.

79. According to PW-3, PW-5 and PW-12, the said stone and the said blanket were
lifted by the police in the morning itself. However, according to PW-16, when he visited at
the spot on 25.09.2016 at 5:00pm, the said articles were still lying there. As such, there
exists material contradiction in the testimony of the prosecution witnesses as to whether the
said stone and the blanket were lifted by the police in the morning hours of 25.09.2016 or
not. As such, an adverse inference can be drawn against the prosecution.

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80. Now presume for the sake of arguments only that the stone and the blanket were
not lifted in the morning of 25.09.2016. In that situation, the fact remains that from the
morning hours of 25.09.2016 till 5:00pm that day, the said articles remained unattended at
the spot and without safeguard as deposed by PW-16. Even at that stage, PW16 had not
seized the said articles. The prosecution has shown the seizure of the stone and the blanket
after the arrest of the accused on 27.09.2016 vide seizure memo Ex.PW5/D. In his cross
examination, PW16 admitted that no police official was left by him to guard the place of
occurrence from 25.09.2016 to 27.09.2016. It implies that from 25.09.2016 to 27.09.2016
till the arrest of the accused, the said articles remained unattended at the spot. The
prosecution relied upon their discovery at the end of the accused. However, in view of the
foregoing discussions, it can be held that the existence and presence of the said stone and
the said blanket and presence of the blood on the stone were within the knowledge of not
only the police officials but also the public witnesses i.e. PW-3, PW-5 and PW-12.
Therefore, it can be held that the prosecution has planted the recovery of the said blanket
and the said stone on the accused and has shown it as a fact discovered in pursuance to the
disclosure statement of the accused, but the fact remains that these facts were still within
the knowledge of the police witnesses much before the arrest of the accused. Hence, it can
be held that no fact was discovered within the meaning of section 27 Indian Evidence Act,
1872. Further, according to FSL report Ex.PW-13/A, no blood was detected on the said
blanket. Therefore, the recoveries shown at the instance of the accused are highly doubtful
in nature. Therefore, in view of the judgment Raj Kumar Singh (supra), statement made by
the accused in reply to the question no.8 and 25 of his statement u/s 313 CrPC that he got
recovered the said blanket and the said stone is of no benefit of the prosecution.

RECOVERY OF THE MOBILE PHONE

81. Case of the prosecution is that the mobile phone Ex. P1 belonged to the deceased
and the same was got recovered by the accused in pursuance to his disclosure statement on
27.09.2016 and the same was seized vide seizure memo Ex.PW5/C on 27.09.2016.

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81A. PW-5, PW-12 and PW-16 in their testimony specifically deposed that the accused
got recovered one mobile phone from a drain near Aarti Medical Store stating that he had
thrown the mobile phone of the deceased in that drain after breaking the same. The accused
in reply to questions no.9, 16, 22, 25, 26 of his statement u/w 313 CrPC stated that he got
recovered the mobile phone.

82. The first question arises as to whether the said mobile phone belonged to the
deceased.

83. Admittedly, the sim card of the said mobile could not be recovered. PW-16 has not
filed any document to link the said mobile phone with the deceased either by way of
ownership or its usage. In fact, PW16 has not made any effort to find out as to whether the
said mobile phone belonged to the deceased or not.

84. PW-5 in reply to a question stated that he did not recall the make or any description
of the mobile phone of his deceased son but it was of black colour. PW-5 identified the
said mobile phone because of its black colour only i.e. black colour which is very common
in market, without mentioning its make and particulars like IMEI number etc.

85. In view of the foregoing discussions, it can be held that the prosecution has failed
to prove that the said mobile phone belonged to the deceased. Therefore, the recovery of
the mobile phone shown at the instance of the accused is not sufficient to hold him guilty.

CLOTHES OF THE ACCUSED

86. APP for the State pleaded that the accused got recovered his clothes worn by him on
the date of incident from his house which were seized vide seizure memo Ex.PW-5/F on
27.09.2016. However, as disclosed by the accused, the said clothes were washed by her
sister. Hence, no blood was detected thereon.

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87. As held above, the incident took place in the intervening night of 24/25.09.2016.
The accused was arrested on 27.09.2016.

88. Perusal of the seizure memo of the clothes i.e. one blue colour jeans and one grey
colour shirt Ex.PW-5/F reveals that the accused got recovered the same from his house
where it was hanged. As per the FSL report, no blood was detected on the said clothes.
The prosecution gave the explanation that the said clothes had already been washed by the
sister of the accused. However, it is not believable that the accused would have given his
blood stained clothes to his sister for washing and after that process, the said clothes would
have been hanged in open in the house. Further, the prosecution has failed to lead any
evidence that the said clothes were washed by the sister of the accused which resulted in
washing of the blood stains. Further, if that was so, the prosecution would have prosecuted
the sister of the accused for the offence causing disappearance of the evidence of offence.
As such, the allegations of the prosecution to this effect are bald in nature.

89. In view of the foregoing discussions, it can be held the recovery of the clothes
shown at the instance of the accused are of no benefit of the accused.

ABSCONDENCE

90. APP for the State pleaded that after the incident, the accused remained absconded
and was arrested on the secret information on 27.09.2016. He also pleaded that PW-7
proved that the accused was his employee and on 26.09.2016 and 27.09.2016, he had not
attended the duty. The accused has failed to justify his absence. As such, the said conduct
of the accused is relevant and shows his involvement in the subject matter.

91. As held above, statement of PW-5 and PW-12 was recorded on 27.09.2016. It is
nowhere the case of the prosecution that from 25.09.2016 till 27.09.2016 when the accused
was arrested, name of the accused had come into picture as a suspect and despite the best
efforts, the accused could not be arrested. Therefore, there is no substance in the plea raised
by the APP.

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ROLE OF INVESTIGATING OFFICER

92. The role of the Investigating Officer is to conduct a fair investigation and place the
material collected before the court to deliver justice. Now the question arises as to whether
in the present case, PW16 (Investigating Officer) has conducted the fair investigation?

93. In the present case, the following facts have been noticed:

(i) According to PW-3, PW-5 and PW-12, the stone Ex. P-5 and the blanket Ex.P-4
were lifted by the police in the morning itself. On the contrary, according to
PW-16, when he visited at the spot on 25.09.2016 at 5:00 pm, the said articles
were still lying there. As such, there exists a material contradiction as to
whether the said stone and the said blanket were lifted by the police in the
morning hours of 25.09.2016 or not.

(ii) If it is true that when PW-16 visited at the park spot on 25.09.2016 at 5:00 pm,
the said stone and the said blanket were still lying there. In that situation, the
said articles were left unattended and without safeguard at that spot.

(iii) Even when PW-16 visited at the park spot on 25.09.2016 at 5:00 pm as deposed
by him, that time also, he had not seized the said stone and the said blanket
though he noticed the blood thereupon. Not the least, he left them unattended
till 27.09.2016.

(iv) PW16 has shown the seizure of the stone and the blanket after the arrest of the
accused on 27.09.2016 vide seizure memo Ex.PW5/D on the basis of his
disclosure statement. However, as held above, the existence and presence of the
said stone and the said blanket and presence of the blood on the stone were
within the knowledge of not only the police officials but also the public
witnesses i.e. PW-3, PW-5 and PW-12. As such, PW16 has planted the recovery
of the said blanket and the said stone on the accused.

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PS: Vijay Vihar

(v) According to PW16, blood was noticed on the said blanket. However, according
to FSL report Ex.PW-13/A, no blood was detected on the said blanket.

(vi) PW-16 claimed that the mobile phone Ex.P-1 belonged to the deceased and was
got recovered on the basis of the disclosure statement of the accused. However,
he has not filed any document to link the said mobile phone with the deceased
either by way of ownership or its usage. In fact, PW16 has not made any effort
to find out as to whether the said mobile phone belonged to the deceased or not.

94. In view of the foregoing discussions, I am of the opinion that the prosecution has
failed to prove the charge leveled against the accused beyond reasonable doubt. Therefore,
the accused is held not guilty for the offences charged with.

95. In view of the foregoing discussions, it can also be held that it is not a case of
lacuna in the investigation on certain aspects. Rather, it is a case where there is no
investigation on certain material aspects. Hence, it can be held that the investigating
agency has not conducted the fair investigation and lacked in discharging its official duty
fairly. Therefore, the Commissioner of Police, Delhi is directed to initiate an inquiry to find
out the erring police officials and then take the Departmental Action against them and
punish them accordingly.

96. Accordingly, the accused is acquitted for the offence under Sections 302 IPC.

97. Copy of this judgment be sent to Commissioner of Police, Delhi for information and
necessary action as directed.

Digitally
signed by
98. File be consigned to Record Room. PANKAJ
PANKAJ GUPTA
GUPTA Date:
2019.04.22
12:58:28
Announced in the open court +0530

on this 18th day of April, 2019. (Pankaj Gupta)

ASJ (FTC), North-West
Rohini: Delhi

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