Delhi District Court
State vs Harshat Jain on 9 September, 2024
IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 57318/2016)
FIR No. 1603/2015
Police Station Prashant Vihar
Charge sheet filed Under Section 302/392/394/397/
34 IPC
Charge framed Under Section 392/394/34 IPC,
397 IPC & 302/34
IPC
State V/s Harshit Jain
S/o Sh. Anil Jain
R/o H. No. F-170, Flat No. 7, 2nd
floor, Manga Bazar, Laxmi Nagar,
Delhi.
......Accused
Date of institution 30.03.2016
Arguments concluded on 13.08.2024
Judgment Pronounced on 09.09.2024
Decision Convicted
JUDGMENT
BRIEF FACTS
1. This is a case based on circumstantial evidence with Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:32:09 +0530 State Vs. Harshit Jain Page No. 1 of 85 heart wrenching facts as an old aged lady was silenced to death, allegedly by her own grandson, as is the case of the prosecution.
2. Events which set the prosecution machinery into motion are that on 19.12.2015 on receipt of DD No. 27A regarding murder of an old aged lady Inspector Sanjay Bhardwaj alongwith staff reached at the spot of murder at M-2/71, Ballabh Vihar Society, Sector-13, Rohini, Delhi where Sh. Roshan Lal Jain, husband of deceased and grandfather of accused Harshit Jain met them and one old lady was found dead lying in a pool of blood. Articles were scattered in the room. Roshan Lal Jain identified the dead body of his wife Smt. Kailashwati, aged 74 years. A red colour shawl was used for strangulating the old lady and there was injury on the head of dead body. Blood was lying on the floor. There was blood stained foot marks outside the bedroom in the floor of the lobby. Inspector called mobile crime team and Forensic expert from FSL and recorded statement of complainant Roshan Lal Jain to the effect that he alongwith his wife Kailashwati and son Manoj Jain were residing at Ballabh Vihar Society, Sector-13, Rohini, Delhi. On 19.12.2015 at about 3.30 pm he went to park and his wife Kailashwati was alone. At about 5.30 pm when he came back to home he found that his house was bolted from outside and lights were on. When he entered his house, he found that his wife was found dead.
Digitally signed by SHEFALISHEFALI SHARMA SHARMA Date:
2024.09.09 16:32:19 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 2 of 85
3. One shawl was strangulated on her neck and blood was oozing from her head and scattered on the bed and on the floor. He has stated that when he left for park, his wife was alone and she bolted the door from inside and during this period someone had murdered her wife. On the basis of his statement offence u/s 302 IPC was made out. Inspector Sanjay Bhardwaj sent Const. Pankaj to PS for registration of FIR and investigation of this case was marked to him. Dead body of Kailashwati was sent to BSA hospital Mortuary for preservation. Cash and jewellery articles were found missing.
4. During investigation, IO prepared site plan at the instance of complainant. IO called Crime team and FSL Rohini team at the spot. Exhibits were collected and taken into police possession. IO obtained CCTV footage where two boys could be seen entering the society at 3:54 pm and exiting at 5:28 pm in suspicious circumstances. IO had shown the CCTV footage installed in the society to Ishwar Prasad (plumber), Puspha(maid) and Upender Lal (liftman), complainant Roshan Lal and after seeing the CCTV footage, they identified the red T shirt boy as Harshit Jain who was grandson of deceased and one boy wearing black colour sweater who accomplice him at the time of incident.
On 22.12.2015 vide DD No. 34B ASI Anil informed that they had arrested Harshit Jain S/o Anil Jain and CCL 'GT' who gave disclosure statements. During investigation, IO seized the hard Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 16:32:30 +0530 State Vs. Harshit Jain Page No. 3 of 85 sick of DVR of CCTV camera alongwith certificate u/s 65 B. On 15.01.2016, IO collected PM report from BSA hospital.
Thereafter, after investigation of this case was marked to Inspector Parveen Kumar. During investigation, IO got the age verification of CCL "GT" and his date of birth was found to be 03.07.1998 and he was declared CCL by Ld. MM and was produced before the JJB. During age verification, the date of birth of accused Harshit Jain came to be 02.09.1994 and he was a major at the time of offence.
5. Eventually during investigation, the IO recorded statement of the various witnesses including the material witnesses PW11(grandfather of the accused), PW25(neighbour), PW7(plumber of the society), PW10 (maid servant), PW12 (uncle of the accused) and various other witnesses and IO also collected the Forensic evidence and after completion of investigation, charge sheet for the offence u/S. 302/392/394/397/34 IPC was filed in the court.
CHARGE
6. On committal of the case to the Court of Sessions, vide order dated 10.06.2016 charge under Section 302 IPC against accused Harshit Jain was found to be prima facie made out and charge was also framed u/s 392/394 and 397 IPC against the accused for robbing of the cash and jewellery articles by Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:32:41 +0530 State Vs. Harshit Jain Page No. 4 of 85 using knife and a jug and strangulating the deceased for the commission of the offence. The formal charge as above was framed on the said date and explained to the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. Thereafter, prosecution in support of its case have examined 39 witnesses in all.
WITNESSES OF INVESTIGATION
(a) PW1 Trilok Chand Bansal, is a formal witness, who deposed that on 20.12.2015, at BSA Hospital Mortuary, after the Post Mortem on the body of Smt. Kailashwati w/o Sh. Roshan Lal, her body was handed over to her son Manoj Jain vide receipt Ex.PW1/A.
(b) PW-2 SI Harish Chander Pathak was working as a Nodal officer in CPCR/PHQ who had furnished the certificate u/s 65B of Indian Evidence Act dt. 18.01.2016 Ex.PW2/A for the correctness of PCR form dt. 19.12.2015 and computer generated PCR form running into two pages Ex.PW2/B.
(c) PW-3 is Ct. Raju, deposed that on 19.12.2016, he was posted at CPCR, and on that day, at about 05.49 pm, he received a message from mobile phone number 9871506777 regarding murder of an old aged lady in house No. M 2/71, Valabh Vihar, Sector-13, Rohini. The said message was flashed on the net and information was sent to concerned police station.
Digitally signedSHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:32:53 +0530 State Vs. Harshit Jain Page No. 5 of 85
(d) PW-4 HC Satish deposed that on 19.12.2015 he was working as Duty Officer at PS Prashant Vihar. At about 05:54 pm, he received message from control room regarding murder of one lady at M 2/71, Vlabah Vihar, Sector-13, Rohini. The said message was reduced in writing vide DD No. 27A Ex.PW 4/A and message was sent to SI Rakesh Rana and SHO.
He has proved computer generated copy of FIR as Ex PW4/B, endorsement on rukka as Ex PW 4/C and the true copy of DD no. 34A as Ex PW 4/D, true copy of DD no. 42A as Ex PW 4/E
(e) PW-5 Ct. Pardeep deposed that on 22.02.2016 he was posted at PS Prashant Vihar and on the direction of SHO, he received three sealed parcels alongwith FSL form to deposit the same in the office of FSL Rohini from MHC(M) vide RC no. 17/21/16. Accordingly, he went to FSL Rohini and deposited the exhibits and obtained the acknowledgment and came back at PS. Acknowledgment was handed over to MHC(M). He deposed that the exhibits as long as were in his possession were not tampered with and remained intact. Thereafter, his statement was recorded by the IO in this regard.
(f) PW6 ASI Subhash deposed that on 19.12.2015 he was posted at PS Prashant Vihar as HC and was working as MHC(M). On that day, IO Inspector Sanjay Bhardwaj had deposited eight pullandas all sealed with the seal of SB. The same were kept in Malkhana and relevant entry was made in the Digitally signed by SHEFALI SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHEFALI SHARMA State Vs. Harshit Jain SHARMA Date:
Page No. 6 2024.09.09 of 85 16:33:07 +0530 register No. 19 vide serial No. 4033 copy of which is Ex. PW6/A to Ex. PW6/Q(OSR) including personal search of accused persons.
He has further deposed that on 23.12.2015, IO Inspector Sanjay Bhardwaj had deposited two wrapper envelopes sealed with the seal of FM BSA Hospital. The same were kept in Malkhana and relevant entry was made in the register No. 19 vide serial No. 4041, copy of same is Ex. PW6/E (OSR).
He has further deposed that on 01.03.2016, one sealed pullanda containing the Hard Disk in sealed condition was sent to FSL, Rohini through Ct. Rajesh Singh vide RC No. 24/21/16 to deposit the same in FSL Office. After depositing the same, Ct. Rajesh Singh handed over him the acknowledgment.
He has further deposed that on 11.03.2016, one sealed plastic box sealed with the seal of FM BSA Hospital was sent to FSL, Rohini through Ct. Babu Lal vide RC No. 34/21/16 to deposit the same in FSL Office. After depositing the same Ct. Babu Lal handed over him the acknowledgment.
He has further deposed that on 18.10.2016, one original Hard Disk of 2 TB capacity was sent to FSL, Rohini through Ct. Sachin vide RC No. 140/21/16 to deposit the same in FSL Office. After depositing the same Ct. Sachin handed over him the acknowledgment.
He has further deposed that during the course of investigation, his statement was recorded by the IO. The exhibits Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
State Vs. Harshit Jain Page No.2024.09.09 7 of 85 +0530 16:33:17 as long as remained in his possession, same were not tampered with.
He has further deposed that the FSL results in this case was received on different occasions and relevant entries in this regard were made in the register no. 19 and also filed in the court.
(g) PW9 is Ms. Richa Manchanda, MM (Mahila Court), North, Rohini, Delhi who deposed regarding the authenticity of the TIP proceedings of accused Harshit Jain S/o Anil Kumar Jain and of CCL "GT" S/o Sanjay Tyagi. Both of them were produced in a muffled face by the IO, Inspector Sanjay Bhardwaj. TIP proceedings were Ex. PW9/A and the certificate for the correctness of the proceedings were Ex. PW9/B. PW9 has further deposed that on 10.03.2016, she conducted the TIP proceedings in her chamber of the case property i.e. three sets of silver anklets, eight wrist watches, one key ring, 13 pairs of toe ring, one gold ring, one tops, two silver boxes small and one broken piece of ghungru. IO also brought sample case property.
The witness Roshan Lal Jain S/o Meghraj Jain was produced by the IO inside the chamber and asked to identify the case properties and during the TIP proceedings he had failed to identify any of the case property.
The said TIP proceedings is Ex. PW9/C and bearing Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No. 8 of16:33:29 85 +0530 her signatures at point A on each page and the certificate of correctness is Ex. PW9/D bearing her signatures at point A. On the application of IO, copies of the TIP proceedings were supplied to the IO concerned vide her endorsement Ex. PW9/E which bears her initial at point A.
(h) PW28 ASI Anil Kumar deposed regarding search, arrest and recovery from the accused persons.
He deposed that on 21.12.2015, at about 10:00 pm, he received a secret information in his office that one old aged lady, who was murdered on 19.12.2015 at Vallabh Society, Sector-13, Rohini and the wanted accused persons in that case were present at Sector-35, Noida, U.P. The information was passed to Inspector Special Staff and on his direction, a raiding party was organized consisted of Inspector Mahabir Singh, HC Parminder, HC Naresh, HC Ved Prakash, Ct. Rajbir, Ct. Rajender, Ct. Sandeep, himself and informer.
He has further deposed that he lodged their departure entry no. 11 dated 21.12.2015 Ex. PW28/A and left the office of Special Staff in civil uniform in two different private vehicles. He has further deposed that at about 12:30 am, they reached Sector- 35, Noida near Roadways Bus Depot. There Inspector Mahabir requested 2-3 passersby to join the raiding party after they were briefed about the information, but none agreed and left the spot without disclosing their names and addresses. He has further deposed that there the secret informer further informed that there Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No.16:33:42 9 of 85+0530 was a Sulabh Shauchalaya just adjacent to wall of Roadways Bus Depot and he further informed that the wanted persons were sleeping inside the room at Sulabh Shauchalaya. Thereafter, informer was asked to leave the spot. He has further averred that they went near the room and found that the door of the room was closed and they pushed the said door and it was opened and there two persons were found sleeping who got up and they disclosed their identity.
He has further averred that thereafter, they were interrogated and they disclosed their names as Harshit Jain and Gaurav Tyagi. He correctly identified accused Harshit Jain in the court. He has further deposed regarding their arrest and personal search.
He has further deposed that two papers having blood stains was recovered from the jacket which was worn by accused Harshit Jain was checked and and on the papers Anuj was written. The said blood stained papers were also converted into a pulanda and sealed with seal of AK and taken into possession vide seizure memo Ex. PW28/G. He has further deposed that one pair of black leather shoes were found lying inside the room, which were blood stained and accused Harishit Jain disclosed that he was wearing the said shoes at the time of commission of murder of his grandmother. The said shoes were converted into a pulanda and Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:33:55 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 10 of 85 sealed with seal of AK and taken into possession vide seizure memo Ex. PW28/H. He has further deposed that the disclosure statements of both the accused Ex. PW28/K and Ex. PW28/L were recorded.
As per the disclosure statement of accused Harshit Jain, he lead them near the naala outside the Sulabh Shauchalaya and from the inside of the naala, he got recovered one blue colour jeans pant of Levis, which was having blood stains and he further told that at the time of incident he was wearing the said pant. The said pant was converted into a pulanda and sealed with seal of AK and taken into possession vide seizure memo Ex. PW28/M. Thereafter, both the accused lead them to the place of occurrence and on their pointing out, pointing out memos Ex. PW28/N and Ex. PW28/O were prepared.
He has further deposed that inside the Sulabh Shauchalaya one cloth bag was recovered in which eight wrist watches of different companies and some rings, pajeb, key ring etc. were recovered. The said articles were kept in the same bag and converted into a pulanda and sealed with seal of AK and taken into possession vide seizure memo Ex. PW28/P. He has further deposed that thereafter, accused Harshit Jain, as per his disclosure lead them to the kitchen of the flat no. M-2/71, Vallabh Society, Sector-13, Rohini, from there he got recovered one copper jug, which was used by him for assaulting Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:34:05 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 11 of 85 the deceased. The said jug was found blood stained and it was converted into a pulanda and sealed with seal of AK and taken into possession vide seizure memo Ex. PW28/Q. He has further deposed that Gaurav got recovered one knife from the kitchen of flat no. M-2/71, Vallabh Society, Sector-13, Rohini, which was used at the time of incident and the same was converted into a pulanda and sealed with seal of AK and taken into possession vide seizure memo Ex. PW28/R. He has further averred that both the accused were taken to hospital for their medical examination and he got lodged DD No. 5 Ex. PW28/S. He prepared the kalandra u/s 41.1 (a) Cr.P.C. and 102 Cr.P.C. which is Ex. PW28/T and information in this regard was sent to PS Prashant Vihar.
Thereafter, he identified the case property i.e. one blue colour jeans pant of Levis having brown stains, which was got recovered by accused Harshit Jain from a naala, which he was wearing at the time of incident as Ex. P1, one knife having metallic blade and plastic handle which was got recovered by JCL Gaurav Tyagi as Ex. P2, two papers having few brown stains which were got recovered from the pocket of jacket of accused Harshit Jain at Sulabh Shauchalaya, Sector-35, Noida as Ex. P3(colly.), one white colour pant having brown stains which was hanging at the hook of Sulabh Shuachalaya and belongs to JCL Gaurav Tyagi, which he was wearing at the time of incident as Ex. P4, one pair of black shoes which belongs to accused Harshit Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:34:16 +0530 State Vs. Harshit Jain Page No. 12 of 85 Jain and was wearing at the time of incident as Ex. P5 and a sum of Rs.900/- I.e in the old denomination of Rs.500/- x 1 and Rs.100/- x 4 which was recovered from the possession of accused Harshit Jain as Ex. P6 (colly.) one cloth bag containing some wrist watches, rings, pajeb etc. which was recovered from the possession of accused Harshit Jain and Gaurav Tyagi from Sulabh Shauchalaya, Sector-35, Noida as Ex. P7(colly.) one copper jug i.e. weapon of offence (which is bent under the handle)which was got recovered by accused Harshit Jain from inside the kitchen of Flat No. M-2/71, Vallabh Society, Sector-13, Rohini as Ex. P8.
(i) PW29 HC Naresh also deposed on the same lines as deposed by PW28 ASI Anil Kumar.
(j) PW31 Const. Naveen was working as draftsman at Mapping Section, Outer District. He prepared scaled site plan Ex. PW31/A on 26.02.2016 and handed over to IO and thereafter, he destroyed the rough notes and measurements and IO recorded his statement in this regard on 01.03.2016.
(k) PW32 Inspector Praveen Kumar was SHO at PS Prashant Vihar who has deposed that on 17.02.2016, he was posted at PS Prashant Vihar as SHO and he received the present file for further investigation. He has further deposed that on 22.02.2016, he sent the exhibits to FSL and recorded the statement of witnesses. Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:34:27 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 13 of 85 He has further deposed that on 23.02.2016, he sent a request to Finger Print Bureau, Kamla Market for comparison of chance print of accused Harshit Jain and Gaurav Tyagi. The accused Gaurav Tyagi was found juvenile, as per date of birth record. The JCL Gaurav Tyagi was produced before JJB and sent to Observation Home.
He has further averred that on 01.03.2016, he recorded statement of Ct. Naveen, Draftsman u/s 161 Cr.P.C. He has further averred that on 01.03.2016 and on 11.03.2016, the exhibits were sent to FSL. He recorded statement of witnesses and thereafter, he prepared chargesheet, which was sent to the court by the ACP concerned.
He has further deposed that on 29.05.2016, he prepared supplementary chargesheet and filed FSL result dated 01.04.2016 and finger print report dated 15.03.2016, which was sent to the court by the ACP concerned.
8. MAIN INVESTIGATING OFFICER PW33 SI Rakesh Rana deposed that on 19.12.2015, on receipt of DD No. 27A already Ex. PW4/A, by Inspector Sanjay Bhardwaj regarding one female has been murdered in M-2/71, Vallabh Vihar Apartment, Sector-13, Rohini. This information was conveyed to him telephonically and other police officials were also informed.
He has further deposed that he alongwith SHO and other staff left for the spot, where they met Sh. Roshan Lal Jain, Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No. 14 of+0530 16:34:37 85 who was husband of the deceased. They entered the flat no. M- 2/71, where there were three bedrooms and one drawing room. On the right side of the flat, in the middle, there was a bedroom in which there was a double bed. On the said double bed, one old lady was lying dead and articles were ransacked. The dead body was identified by complainant Sh. Roshan Lal Jain as of his wife Smt. Kailashwati.
He has further deposed that the head of the dead body was towards East and the legs were towards West side. A red colour shawl was found tied around the neck of the dead body. The neck was found cut injury and injury was found on the head of the dead body. The blood was found on the bedding and the floor. There were marks of foot prints and foot print marks of blood in the lobby.
Crime team and FSL forensic expert were called. IO Inspector Sanjay Bhardwaj recorded statement of complainant Sh. Roshan Lal Ex. PW1/A bearing the signatures of Sh. Roshan Lal at point A which was attested by Inspector Sanjay Bhardwaj by his signature. Sh. Roshan Lal Jain read over the statement and only then signed the same at point A. IO prepared rukka by making endorsement on the same. The rukka was handed over to Ct. Pankaj at 9:30 pm for registration of FIR. Ct. Pankaj left for PS. The crime mobile team of district with staff reached at the scene of crime. Crime mobile team inspected the scene of Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:34:49 +0530 State Vs. Harshit Jain Page No. 15 of 85 crime and photographer took the photographs from different angles. HC Manoj checked the chance prints on an empty whiskey bottle, found at the scene of crime in the second bedroom, which was lying near the double bed.
An application was prepared for preserving the dead body in the mortuary of BSA Hospital. He alongwith Ct. Rakesh took the dead body to the mortuary of BSA Hospital. Dead body was preserved in the mortuary and Ct. Rakesh was deputed to take care of the dead body and he returned to the spot i.e. scene of crime.
He has further deposed that the FSL team Rohini headed by Sh. Parshuram Singh reached there and inspected the scene of crime. The exhibits i.e. blood stains were lifted from the handle from main iron door, handle of wooden door, from the sink of first floor bathroom cum toilet, floor of second bedroom, from TV cable, floor of lobby, floor of third bedroom and taken in possession from serial no. 1 to 7 separately and resealed with the seal of SB. The same were taken in possession vide seizure memo already Ex. PW11/B. The said empty whiskey bottle was handed over to Inspector Sanjay Bhardwaj, who put the same in plastic jar and wrapped with tape and sealed with the seal of SB which was given serial no. 8. The said pulanda was taken in possession vide seizure memo already Ex. PW11/C. He has further averred that on 20.12.2015, he alongwith IO went to the mortuary of BSA Hospital, where they Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:35:03 +0530 State Vs. Harshit Jain Page No. 16 of 85 met Ct. Rakesh Kumar. The relatives of the deceased also met them outside the mortuary. The dead body was identified by the relatives of the deceased i.e. Sh. Anil Jain and Sh. Manoj Jain. IO prepared inquest documents i.e. form 25.35 and prepared application for conducting postmortem on the dead body. The postmortem was conducted on the dead body. After postmortem, the dead body was handed over to the relatives of the deceased vide dead body handing over memo already Ex. PW11/B. The autopsy surgeon / hospital handed over the exhibits alongwith sample seals to IO, who seized the same vide seizure memo Ex. PW33/A. He has further deposed that he alongwith IO and Ct. Rakesh returned to PS. He alongwith IO reached at the scene of crime and went to the office of RWA. In the office of RWA, CCTV operator was not available.
Thereafter, they met the plumber of the said society namely Sh. Ishwar Prasad, who revealed that on 19.12.2015, at 4:00 pm, he had seen grandson of Sh. Roshan Lal namely Harshit and one another boy on the roof of the society. IO recorded the statement of Sh. Ishwar Prasad u/s 161 Cr.P.C.
He has further averred that on 21.12.2015, he alongwith IO went to the said society i.e. Vallabh Vihar Apartment, where they alongwith RWA members went to the room and watched CCTV footage. In the said footage, they saw accused Harshit Jain and one another boy at the relevant time and Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:35:13 +0530 State Vs. Harshit Jain Page No. 17 of 85 date. After watching the said CCTV footage, the same footage was also shown to maid Pushpa, Ishwar Prasad/plumber, lift man Upender and Manoj, who identified the accused and another boy visible in the same at the relevant date and time.
He has further deposed that on 22.12.2015, he again joined the investigation with IO and Ct. Rajesh and went to room no. 110 of Ld. MM, where both the accused Harshit Jain and Gaurav Tyagi were produced by the officials of Special Staff, Outer District i.e. ASI Anil and other staff. Both the accused were in muffled face. IO moved an application for interrogation and arrest of the accused persons, which was allowed by Ld. MM. Accused Harshit and Gaurav Tyagi were interrogated and arrested vide arrest memo Ex. PW33/B and Ex. PW33/C respectively. Accused Harshit and Gaurav made disclosure statements Ex. PW33/D and Ex. PW33/E respectively.
IO produced the accused persons before the Ld. MM for PC remand, which was granted. Both the accused were taken on PC Remand. The accused were interrogated and they pointed out the scene of crime, where they committed the murder of Smt. Kailashwati. The accused were got medically examined and sent to lock-up.
He has further deposed that he alongwith IO went to mortuary of BSA Hospital, where the doctor / hospital handed over the ligature material and clothes of deceased in sealed pulanda duly sealed with the seal of Dept. OF FM DR BSAH Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:35:27 +0530 State Vs. Harshit Jain Page No. 18 of 85 GOVT OF DELHI alongwith two sample seals which were seized by the IO vide seizure memo Ex. PW33/F. He has further deposed that on 23.12.2015, he again joined the investigation with IO. The accused persons were taken out of lock-up of KNK Marg. The accused were interrogated. Both the accused were taken to Forensic Department of Dr. BSA Hospital, where their clinical examination was conducted. After the medical examination of both the accused persons, the scalp hair sample of both the accused persons were sealed with the seal and sealed envelopes were handed over to IO, who seized the same vide seizure memo Ex. PW33/G. Both the accused were produced in the court and sent to JC.
He has further deposed that on 29.12.2015, he alongwith IO went to the Vallabh Vihar Society, where they met with Sh. Sanjeev Jain, the then Secretary of RWA of the said society. They went to the office of said society, where Sh. Sanjeev Jain handed over hard disk of DVR. The said hard disk of DVR of Toshiba company was taken in possession. The said hard disk contained the footage of recording of the relevant date and time. The said hard disk was wrapped in a piece of cloth which was converted into pulanda and sealed with the seal of SB. The said pulanda was taken in possession vide seizure memo already Ex. PW30/A. He correctly identified one Toshiba made Hard disk bearing no. S/N:2512V33PSU53 of 02TB capacity as Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:35:36 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 19 of 85 Ex. P1, one empty whiskey bottle of Big Boss Premium Whiskey as Ex. P2.
PW34 Inspector Sanjay Bhardwaj deposed on the same lines as PW33. He prepared site plan Ex. PW34/B and recorded statement of mobile crime team official SI Ajeet Singh and others. SI Ajeet handed over him the scene of crime visit report by mobile crime team and he placed the same on record which is Ex. PW34/C. He recorded supplementary statement of Roshan Lal, statement of Anil Jain, Manoj Jain, Rajesh Jain, Rajiv Jain, Sanjay Jain. He alongwith other staff returned to PS. He deposited the case property with MHC(M). He also recorded the statement of Ct. Pankaj, SI Rakesh and others.
He has further deposed that Mobile crime team had taken the chance print from empty whiskey bottle and he had seized the same thereafter in this case. He added Section 392/394/397/34 IPC in this case.
He has further averred that on 20.12.2015 the dead body of deceased Kailashwati was taken subjected to postmortem examination. He prepared the inquest papers now Ex. PW34/D (collectively consisting of 3 pages)bears his signature at point A including form No. 25.35(1)(B). The request of preservation of the dead body made on 19.12.2015 by SI Rakesh Rana on his behalf is Ex. PW34/E. The dead body was identified by Sh. Anil Jain and Sh. Manoj Jail vide identification statement already Ex. PW17/A and Ex. PW11/B. The dead body after the postmortem Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:35:50 +0530 State Vs. Harshit Jain Page No. 20 of 85 examination was handed over to the relatives vide handing over memo already Ex. PW1/A. After the postmortem examination the concerned doctor handed over the exhibits alongwith 4 sample seals and he seized the same vide seizure memo already Ex. PW33/A. He recorded the statement of plumber Ishwar Prashad in this case on 20.12.2015. He deposited the case property in the malkhana.
He has further deposed that on 21.12.2015 he visited Vallabh Vihar Society and seen the CCTV footage of the society. The said CCTV footage was also seen to plumber Ishwar Prasahd, liftman Upender Lal, maid Pushpa, complainant Roshan Lal and his son Manoj. All the aforesaid persons on seeing the CCTV camera footage identified the boy wearing red t-shirt as Harshit Jain grandson of deceased Kailashwati. The grandson Harshit Jain in that CCTV footage was seen accompanying with one another boy who was wearing black colour sweater. As per the CCTV footage Harshit Jain and the boy accompanying him seen entering and exiting the society premises together on the day of the incident at about 04:00 PM. The entry time was about 04:00 PM but the exit time was thereafter, he recorded the statement of Pushpa, Upender Lal and supplementary statement of Manoj, complainant Roshan Lal and plumber Ishwar Prashad.
He has further deposed that on 22.12.2015 vide DD No. 34B Ex. PW34/F ASI Anil of Special Staff, Outer District informed about the arrest of accused Harshit Jain and Gaurav Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:36:00 +0530 State Vs. Harshit Jain Page No. 21 of 85 Tyagi under Section 41.1(a) Cr.P.C already Ex. PW28/T. They both admitted their guilt in the present case and recoveries were effected by the Special Staff from the accused persons in that kalandra. Special Staff were producing them in the Rohini Court in muffled face. He reached Rohini court and moved an application for interrogation and arrest of the accused persons Ex. PW34/G. After taking permission from the concerned court he interrogated both of them. He arrested both Harshit Jain and Gaurav Tyagi in this case vide memo Ex. PW33/B and Ex. PW33/C. Accused Harshit Jain and Gaurav Tyagi made their disclosure statements already Ex. PW33/D and Ex. PW33/E. He collected the kalandra and the connected documents including seizure memos and arrest memos and other miscellaneous documents Ex. PW28/A to Ex. PW28/T. He recorded the statement of Special Staff officials including ASI Anil, HC Ved Prakash and HC Naresh. He moved application Ex. PW34/H for TIP of accused persons. Both accused Harshit Jain and Gaurav Tyagi refused to join the TIP vide TIP proceedings dated 22.12.2015 Ex. PW34/J. He obtained the one day PC remand of the accused persons vide order dated 22.12.2015 Ex. PW34/K. He correctly identified accused Harshit Jain in the court. Accused Gaurav Tyagi not present in court today (since declared juvenile).
He deposed that he can identify accused Gaurav Tyagi if shown to him. The ligature material, clothes of the deceased in sealed condition alongwith two sample seals seized by the concerned Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:36:10 +0530 State Vs. Harshit Jain Page No. 22 of 85 doctor during postmortem examination of the deceased Kailashwati handed over on 22.12.2015 and he seized the same vide seizure memo already Ex. PW33/F. He has further deposed that on 23.12.2015 both accused Harshit Jain and Gaurav Tyagi taken to BSA Hospital, Department of Forensic and Medicine and their scalp were taken vide clinical examination already Ex. PW14/A and Ex. PW14/B respectively by the concerned doctor. After the scalp hair preserved, sealed and handed over to him by the concerned doctor, he seized the aforesaid scalp hair of the accused persons vide seizure memo already Ex. PW33/G. Both the accused persons were thereafter produced before the concerned court and sent to JC.
He has further deposed that on 29.12.2015 he alongwith SI Rakesh Rana went to the said society in Sector 13, Rohini there they met the members of the RWA. From the office of society he was handed over hard disk or DVR which he wrapped in a piece of cloth and converted into pullanda which was sealed with the seal SB. The said pullanda was taken in possession by seizure memo already Ex. PW-30/A. They went to the police station and case property was deposited with MHCM. He recorded statement of SI Rakesh Rana.
He has further deposed that on 15.01.2016, he went to DR. BSA hospital where he collected post mortem report which he placed the same on record. Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:36:20 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 23 of 85 He has further deposed that on 18.01.2016, he collected PCR form alongwith certificate of 65 B Indian Evidence Act which he placed the same on record.
He has further deposed that on 17.02.2016, he had been transferred therefore he handed over the case file to MHCR.
He correctly identified the accused in the court. He has further deposed that later on FSL result dated 21.04.2017 prepared by Vivek Kumar of FSL Ex. PX1, result dated 28.11.2016 prepared by Vivek Kumar of FSL Ex. PX2, result dated 08.09.2016 prepared by Ms Sunita Gupta Ex. PX3 and result dated 27.10.2016 prepared by Ms Sunita Gupta Ex. PX4 have been filed and placed the same on record.
He identified the case property i.e. the envelope in which blood sample on gauze cloth piece were taken from the handle of the main iron door as Sr. No. 1, one open cut envelope having seal impression of SB. The witness correctly identified the envelope in which blood sample on gauze cloth piece were taken from the handle of the main wooden door as Sr. No. 2, the envelope in which blood sample on those gauze piece were taken from the handle of the sink of bath room cum toilet as Sr. No. 3, envelope in which blood sample on those gauze piece were taken from the floor of the second bad room as Sr. No. 4, the envelope in which blood sample on those gauze piece were taken from TV table as Sr. No. 5, the envelope in which blood sample on those gauze piece were taken from the floor of lobby as Sr. No. 6, Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:36:32 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 24 of 85 envelope in which blood sample on those gauze piece were taken from the floor of the third bad room as Sr. No. 7, one empty whiskey bottle of big boss premium whisky which was found laying at second bad room on the head rest side of double bed as Ex. P2, one toshiba made hard disk having capacity of 02TB as Ex. P1.
9. MATERIAL WITNESSES
(a) PW7 Sh. Ishwar Prasad deposed that at that time he was residing at the aforesaid address alongwith his family and in the year 2015, he was residing at B 247, Railway Line, Jhuggis, B Block, Wazirpur Industrial Area, Delhi. He was a permanent resident of village Maharajpur, PS Badhrai, Distt. Pratapgarh, UP.
He has further deposed that he was a plumber by profession and working in Vallabh Vihar Society, Sector 13, Rohini. He did not know anything about the present case and he only heard about the case from the residents of the society.
He was cross-examined at length by Ld. Addl. PP for the State.
(b) PW8 Ms. Neeta Jethy, Principal, Mothers Global School, C-Block, Preet Vihar, Delhi brought the summoned record in respect of student Harshit Jain S/o Sh. Anil Kumar Jain who was admitted in their school on 01.04.2000 vide admission No. 3392 in class First. Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:36:43 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 25 of 85 She has further deposed that as per their school record, the date of birth of student Harshit Jain is 02.09.1994.
(c) PW10 Smt. Pushpa deposed that she used to work as a maid servant at Vallabh Vihar Society. She also worked at Flat no. M-2/71, Vallabh Vihar Society.
She has further deposed that date and month she did not remember. However, it was about two years ago, police officials made a call and asked her to reach flat no. M-2/71, Vallabh Vihar Society. She reached at the aforesaid address and came to know that wife of Sh. Roshan Lal was expired and she did not know under what circumstances she was expired.
She was cross-examined by Ld. Addl. PP for the State. She identified accused Harshit Jain in the court who was the grandson of Roshan Lal and deceased.
(d) PW11 Sh. Roshan Lal Jain deposed that he was residing at the aforesaid address. Kailashwati (since deceased) was his wife. His son Manoj Jain was working at Maliwada Jewellery shop. He correctly identified accused Harshit Jain S/o Anil Jain as his grandson.
He has further deposed that on 19.12.2015, in the morning, he received a telephonic call from accused Harshit Jain and he told him that he was coming to take his clothes and other articles. He waited him till 3:30 pm but he did not come to his house. Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:36:59 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 26 of 85 He has further deposed that at about 3:30 pm, he left his house and went to park for walking and his wife Kailashwati was remained in his house. When he reached in the park he again received a call from his grandson accused Harshit Jain that he was coming and asked from him where he was. He told him that he was walking in the park and thereafter he told him that he would also reach the park and he was also bringing juice for him.
He has further deposed that at about 4:00 pm, his grandson accused Harshit Jain came in the park and he gave him juice for drink. Accordingly, he drank the same and started walking together while talking to each other.
He has further deposed that at about 5:30 pm, he alongwith his grandson accused Harshit left the park and at that time, accused told him that he would follow him after some time.
He has further deposed that when he reached his house, he found that main door of the house was already opened. He went inside his house. In the middle room, on the bed his wife was lying in a pool of blood. One blood stained knife and blood stained jug were lying on the bed.
In the meanwhile, his grandson accused Harshit also came there. He alongwith accused Harshit Jain tried to lift his wife. In this process, his clothes as well as clothes of Harshit Jain were blood stained and the shoes of Harshit Jain was also blood stained. Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:37:10 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 27 of 85 After some time, police came there. His sons Anil and Rajesh also reached in the house. Police made inquiries from him and they also conducted proceedings in the house and at about 9:30 pm, the body of his wife was shifted to hospital by the police. Accused Harshit was loudly weeping on seeing the body of his wife.
Thereafter, Harshit Jain was left in the house and he also accompanied the police. When he returned from hospital to his house, Harshit was not present in the house as he was taken to Laxmi Nagar by his son Manoj.
He has further deposed that on the next day, postmortem on the body of his wife was conducted. After the postmortem, body of his wife was received for final rites.
He has further deposed that on 21.12.2015, his grandson Harshit was called at PS by the police and there he was falsely arrested in this case and police obtained his signatures on some blank papers and some printed papers and the contents of documents were not read over to him.
During cross-examination by Ld. Addl. PP for the State, he identified his signatures on the statement of witness i.e. Ex. PW11/A. He admitted that the neck of his wife was tied with a shawl and blood was oozing from her neck and lying on the bed and floor of the house. He admitted that police came to his house, crime team was called, FSL team was also called by the police and they inspected the spot, photographs were taken and on his Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:37:18 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 28 of 85 pointing out police prepared the site plan. The exhibits which were lifted by the FSL experts were seized vide seizure memo Ex. PW11/B. Jug and knife were already lifted by the police.
He has also admitted that some cash was missing from his house.
He identified his signatures at point A on the seizure memo of empty whiskey bottle Ex. PW11/C. He has admitted that he had participated in the TIP proceeding to identify the case property which was missing from his house from 19.12.2015 at the time of murder of his wife and he was unable to identify those articles.
He identified his signatures on TIP proceedings already Ex. PW9/C at point A.
(e) PW21 Sh. Rajiv Jain deposed that Sh. Roshan Lal Jain was his neighbour who was residing with his wife Smt. Kailashwati at M-2/71, Vallabh Vihar Apartment, Sector-13, Rohini. He has further deposed that on 19.12.2015, at about 5:40 pm, he was informed by Sh. Roshan Lal Jain that he had gone to park for roaming at about 3:30 pm and at about 5:30 pm when he came back to his flat he found his wife was lying dead in the flat. He visited the spot and saw the dead body of Smt. Kailashwati in bedroom on the bed in a pool of blood. Thereafter, he made a call at 100 number from mobile phone number 9871506777 and IO recorded his statement in this regard.Digitally signed by SHEFALI
SHEFALI SHARMA SHARMA Date:
2024.09.09 16:37:31 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 29 of 85
(f) PW25 Sh. Upender Lal deposed that in the year 2015 he was working as a lift man at Vallabh Vihar Society, Sector-13, Rohini, Delhi. He has further deposed that he did not know anything about the present case. He has further averred that date and month he did not remember, however, it was in the year 2015 when he reached in the society for his duty, he came to know that wife of Sh. Roshan Lal R/o M-2/71, Vallabh Vihar Society was murdered. He did not see anything in the present case. Police made inquiries from him and he told them that on the day of murder, he was not present on his duty.
He was cross-examined by Ld. Addl. PP for the State. He has admitted that he knew accused Harshit prior to the incident as he usually used to visit the society. He correctly identified accused Harshit in the court.
At this stage, IO had arranged a laptop for playing the CCTV footage of 19.12.2015. The pen drive USB 2.0 (FSL- 2017/CFU-1740 copy of "PD1"), Ex.PX. was connected with the laptop and CCTV footage was played.
In camera no. 16, an entry and exit gate, timing 3:54 and 5:28 pm, two persons are seen entering and exiting in the society.
In the CCTV footage dated 19.12.2015 of camera no. 16, at 17:28:01, two boys are visible while coming out of the main gate of the society, one boy carrying a bag on his right shoulder and another boy, who followed him found wearing red Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:37:41 +0530 State Vs. Harshit Jain Page No. 30 of 85 colour T-shirt and carrying a jacket type cloth on his right shoulder by holding the same with his right hand. The red colour T-shirt wearing boy was also carrying a bag in his left hand. Both the boys separated to the different directions after coming out of the main gate. The boy, who was wearing red colour T- shirt crossed the road in front of the gate, where one rickshaw was stationed. He boarded the said rickshaw and went away.
In the CCTV footage dated 19.12.2015 of camera no. 16, at 15:54:41, two boys were seen coming together towards the main gate of the society, one boy wearing the same red colour T-shirt and carrying a jacket type cloth on his right shoulder in the same style as visible previously and both boys entered the gate of the society at 15:54:57 and seen going together in the society.
Witness was asked to identify, if any of the two boys visible in the CCTV footage were present in the court. Witness had taken a look around the court and stated that none of those two boys were present in the court. Witness was pointed out towards accused Harshit Jain and asked if he was the person, who was wearing red colour T-shirt and carrying a jacket on his right shoulder, was visible in the CCTV footage. Witness denied the same and stated that he was not the said person visible in the CCTV footage.
It was observed by the Court that
Digitally signed
by SHEFALI
SHARMA
SHEFALI Date:
SHARMA 2024.09.09
16:37:52
+0530
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 31 of 85 "In the CCTV footage dated 19.12.2015 in camera no. 16, at 17:28:01 and 15:54:41, the faces of both the boys are clearly visible including that of the accused present in the court today i.e. Harshit Jain."
He has admitted that in the CCTV footage the main gate of Vallabh Vihar Society, Sector-13, Rohini was visible.
(g) PW30 Sanjeev Jain was the Honorary Secretary of Vallabh Vihar Society situated at Sector-13, Rohini, Delhi in the year 2015. He has deposed that during the course of investigation of this case, IO came to their Society and requested him for providing the CCTV recording of the cameras installed in the Society. At that time, as many as 16 cameras were installed in the Society, accordingly, he had instructed their Manager Sh. Jagdish for providing the CCTV recordings. Accordingly, their Manager had provided the DVR of CCTV to the investigation officer. IO had seized the said DVR vide seizure memo Ex.PW30/A. He has further deposed that though, the said seizure memo bears his name, but he had signed at point X to X1 on seizure memo Ex. PW30/A and the said signatures were not his signatures. So far as he remember, he had also prepared and handed over certificate u/s 65B of Indian Evidence Act Ex. PW30/B. He has further deposed that he had also informed the IO that the dates appearing in the CCTV footages were correct and on the walls of the Society, a notice board was installed "You are under surveillance of CCTV Camera". Till the time of Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No. 3216:38:03 of 85 +0530 handing over of the DVR, there was no tampering in the said DVR.
10. WITNESSES OF Dead Body identification
(a) PW12 Manoj Jain deposed that he is a businessman. He has further deposed that on 19.12.2015, he received a call from his father that his mother Smt. Kailashwati was murdered by some unknown person. On receiving this information, he reached his house from his business place. Police was also present there. Thereafter, he alongwith his father and two brothers checked the house and found some jewellery, artificial jewelery and cash was missing. At that time, his nephew i.e. accused Harshit Jain was also present in the house.
After some time, dead body of his mother was shifted to the hospital by the police and he dropped his nephew at Laxmi Nagar house after changing his blood stained clothes and shoes.
On the next day, he identified the body of his mother at mortuary vide identification memo Ex. PW12/A. He has further deposed that after the postmortem, body of his mother was received vide receipt Ex. PW12/B. Thereafter, his statement was recorded by the IO.
(b) PW20 Sh. Anil Jain deposed on the similar lines as PW12 Manoj Jain.
11. MEDICAL AND FOREINSIC EVIDENCE Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 2024.09.09 16:38:14 +0530 State Vs. Harshit Jain Page No. 33 of 85
(a) PW13 Dr. Mukesh Kumar, SR, FMT, BJRM Hospital deposed that on 20.12.2015, from 11:15 am to 1:30 pm, he alongwith Dr. Sandeep Garg had conducted the postmortem on the body of deceased Kailashwati W/o Roshan Lal Jain. Body was sent by Inspector Sanjay Bhardawaj, SHO, PS Prashant Vihar in case FIR No. 1603/15 U/s 302 IPC. They had mentioned the external and internal injuries in their PM report no. 811/15 dated 20.12.2015 In their opinion, cause of death was due to combined effect of asphyxia and hemorrhagic shock as a result of ligature strangulation and multiple injuries in the head and neck which taken together were sufficient to cause death in ordinary course of nature. The ligature strangulation could be caused by the ligature material found on the neck.
According to him, injury no. 1 & 2 could be caused by a sharp edged weapon and injury no. 3 to 14 could be caused by blunt force.
According to him, injury no. 1 & 2 were likely to be perimortem and injuries no. 3 to 14 were antemortem and fresh in duration prior to the death. The manner of death in this case was homicidal in nature. Viscera was preserved.
Their detailed PM report NO. 811/15 dated 20.12.2015 running into 8 pages are Ex. PW13/A bears his signature at point A and signature of Dr.Sandeep Garg at point B on each page, which he identified. Digitally signed by SHEFALI SHARMA SHEFALI Date:
SHARMA 2024.09.09
16:38:27
+0530
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 34 of 85
(b) PW14 Dr. Mahesh Chand Meena, MD, Forensic Medicine, Assistant Professor, Dr. BSA Hospital, Rohini deposed that on 23.12.2015, he alongwith Dr. Sandeep Garg had preserved the scalp hairs of Harshit Jain S/o Anil Kumar Jain and same were sealed with the seal of department and handed over to IO. He proved their report Ex. PW14/A. On the same day, he alongwith Dr. Sandeep Garg had preserved the scalp hairs of Gaurav Tyagi S/o Sanjay Tyagi and same were sealed with the seal of department and handed over to IO and gave report Ex. PW14/B.
(c) PW15 Dr. Sandeep Garg MD, Forensic Medicine, SR, Dr. BSA Hospital, Rohini, deposed on the same lines as PW13 Dr. Mukesh Kumar regarding the PM and cause of death.
He has further deposed that on 23.12.2015, he alongwith Dr. Mahesh Chand Meena had preserved the scalp hairs of Harshit Jain S/o Anil Kumar Jain and same were sealed with the seal of department and handed over to IO and their report is already Ex. PW14/A which bears his signatures at point B and the signature of Dr. Mahesh Chand Meena at point A, which he identified.
He has further deposed that on the same day, he alongwith Dr. Mahesh Chand Meena had preserved the scalp hairs of Gaurav Tyagi S/o Sanjay Tyagi and same were sealed with the seal of department and handed over to IO and their report is already Ex. PW14/B which bears his signatures at point Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:38:40 +0530 State Vs. Harshit Jain Page No. 35 of 85 B and the signature of Dr. Mahesh Chand Meena at point A, which he identified.
PW15 Dr. Sandeep Garg was again examined on 02.03.2023 and deposed that he was working as Senior Resident in Dr. BSA Hospital in department of Forensic Medicine. He has further deposed that on the request of IO/Inspector Vikram Singh he gave subsequent opinion regarding the weapon of offence.
He has further deposed that IO produced a sealed parcel sealed with the seal of SG FSL, same was opened and found containing one metal jug having a sticker of FSL bearing FSL No. 2016/B- 1385, BIO No. 421/16 Ex. No. 4 dated 12.08.2016. He prepared the rough sketch of the same and examined the same. PM report was perused and after examination, he was of the opinion that injury mentioned in the postmortem report except injury No. 1 and 2 could be possible by the weapon (metal jug) examined. He gave his detailed report Ex. PW15/X. After examination, the said metal jug was sealed back and handed over to the IO.
(c) PW16 Sh. Indresh Kumar Mishra, Assistant Director (Biology), FSL, Rohini, Delhi deposed that on 19.12.2015, he was working as Senior Scientific Officer, (Biology). On that day, on the request of SHO, PS Prashant Vihar, he alongwith Sh. Parshu Ram Singh, Assistant Director (Physics), Sh. Prakash Chandra, Junior Forensic Chemical Examiner (Photo) and Sh. Anant Parmar, Scientific Assistant (Lie Detection) visited the crime of scene i.e. at M-2/71, Vallabh Digitally signed by SHEFALI SHARMA SHEFALI Date:
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA 2024.09.09 16:38:50 State Vs. Harshit Jain Page No. 36+0530 of 85 Vihar Apartment, Sector-13, Rohini, Delhi. There on the presence of SHO and other police officials they lifted 7 exhibits from the different parts of the flat and kept in different envelopes and handed over to SHO, Inspector Sanjay Bhardwaj and his crime scene report is Ex. PW16/A.
(d) PW17 Sh. Parshuram Singh, Assistant Director (Physics), FSL, Rohini, Delhi also deposed on the same lines as deposed by PW16 Sh. Indresh Kumar Mishra.
(e) PW35 Sh. Vivek Kumar, Scientific Officer, FSL Jhansi, U.P. deposed that vide letter number 943/R/SHO/Prshant Vihar dated 01.03.2016 in connection with case FIR No. 1603/15 dated 19.12.2015 U/s 302 IPC PS Prashant Vihar.
He has further deposed that vide letter number 1241/SHO/Prshant Vihar dated 08.03.2017 in connection with case FIR No. 1603/15 dated 19.12.2015 U/s 302 IPC PS Prashant Vihar and received in the laboratory on 08.03.2017 in one sealed parcel. The said parcels were marked to him for examination purposes. He had checked the said parcel and seals over the said parcels were found intact and tallied as per forwarding specimen seal. He had opened the said parcels and the material contained in the said parcels were marked as exhibit HDD1.
He had examined the said exhibit. On examination of the said sample from exhibit HDD1. The suspect storage media marked as HDD1 was forensically cloned on a sterile storage media and the cloned storage media was analyzed with the help Digitally signed by SHEFALI SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHEFALI SHARMA State Vs. Harshit Jain Page No. 37 of 85 SHARMA Date:
2024.09.09 16:39:04 +0530 of DVR and other forensic hardware and software tools available in the laboratory. The data of (Channel-16) dated 18.12.2015 and (Channel Nos.-02,04,05 & 16) of dated 19.12.2015 from 03:00 pm to 06:00 pm which could be retrieved from the exhibits marked HDD1 were provided in one Pen Drive marked PD1. The copy of pen driver prepared from PD1 which is already on record and now exhibits as Ex. PX bearing his signatures on the aforesaid pen drive.
After examination, the exhibits were sealed with the seal of FSL V:K DELHI. After examination, He had prepared report dated 21.04.2017 which is already exhibited as Ex. PX1. The said pendrive found his signatures and particulars of FSL report No. Witness correctly identified his signatures and number of the report mentioned on PD1 and also identified the pen drive already Ex. PX.
He correctly identified one hard drive make Toshiba bearing Sl. No-2512V33TSU53 of 02TB capacity which was marked as HDD1 bearing his signature and particulars of FSL reports as Ex. PXA.
(f) PW-36 Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL, Rohini, Delhi deposed that on 22.02.2016, 19 (nineteen) sealed parcels were received in FSL office and were marked to her for examination. The seals on the parcels were found intact and tallied with the specimen seals. She opened all Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:39:15 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 38 of 85 the parcels and conducted biological and DNA examination and prepared her detailed report Ex. PX-3.
She has further deposed that on 11.03.2016, 01 (one) sealed parcel was received in FSL office and was marked to her for examination. The seals on the parcel was found intact and tallied with the specimen seals. She opened the parcel and conducted biological and DNA examination and prepared her detailed report Ex. PX-4.
She has further deposed that after examination remnants of the exhibits were sealed with the seal of SG FSL DELHI.
(g) PW37 Dr. Subhra Kumar Paul, Senior Scientific Officer (Chemistry Division), FSL Rohini, Delhi deposed that on 22.02.2016 03 (three) sealed parcels with the seal of Department of F.M. BSAH Government of Delhi were received in FSL for chemical examination. After opening the parcels, viscera samples of deceased Kailashwati were found in exhibits 1, 2 and 3 wherein she opined that on chemical microscopic and TLC examination, metallic poisons, ethyl and methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1, 2 and 3. Her detailed report is Ex. PW37/A. She has further deposed that after examination, the remnants of the exhibits have been sealed with the seal of SKP FSL Delhi. Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:39:28 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 39 of 85
12. OTHER POLICE OFFICIALS
(a) PW18 HC Virender Singh deposed that on 19-12-
2015 he was posted at Mobile Crime Team, Outer District as a Ct. and working as a photographer.
On that day, he along with Incharge Crime Team SI Ajit and HC Manoj, finger print proficient reached at the spot i.e. M-2/71, Vallabh Vihar Apartment, Sector-13, Rohini, Delhi and at the spot he took 37 photographs from different angles on the directions of IO.
Thereafter, after developing the photographs he handed over 37 photographs to IO. The said photographs are Ex. PW18/A1 to PW18/A37. He had brought the negatives Ex. PW18/B1 to Ex. PW18/B37. He has further deposed that during the course of investigation, his statement was recorded by the IO.
(b) PW19 Ct. Pankaj deposed that on 19-12-2015 he was posted at PS Prashant Vihar. On that day, IO Inspector Sanjay Bhardwaj handed over him a rukka for registration of FIR. He went to PS and got registered the case and came back at the spot i.e. M-2/71, Vallabh Vihar Apartment, Sector-13, Rohini, Delhi alongwith copy of FIR and original rukka and same were handed over to IO and IO recorded his statement in this regard.
(c) PW22 Ct. Rakesh deposed that on 19-12-2015 he was posted at PS Prashant Vihar, Delhi and on the direction of SI Rakesh Rana, he took the dead body of Smt. Kailashwati to Digitally signed by SHEFALI SHEFALI SHARMA Date:
SHARMA 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:39:39 +0530 State Vs. Harshit Jain Page No. 40 of 85 mortuary BSA Hospital from Flat No. M-2/71, Vallabh Vihar Apartment, Sector-13 Rohini and preserved the dead body in the mortuary. He remained at mortuary till the post-mortum on the body of the deceased. After the post-mortum Doctor handed over the seal exhibits including sample seals and he had handed over the said exhibits to IO and same were remained intact in his possession. Thereafter, IO recorded his statement in this regard.
(d) PW23 HC Manoj deposed that on 19-12-2015, he was posted at Mobile Crime Team, Ourter District, Delhi. He has further deposed that on that day, he along with Incharge Crime Team SI Ajeet Singh and photographer Vijender the spot i.e. M-2/71, Vallabh Vihar, Sector-13, Rohini, Delhi, there he lifted chance prints from one half whisky bottle, having a label of 'Big Boss' and handed over to the IO and thereafter, IO recorded his statement in this regard.
(e) PW26 Constable Babu Lal deposed that on 11.03.2016, on the instruction of IO, he received one sealed parcel in a sealed condition from MHCM along with FSL form, vide RC No. 34/21/16 to deposit the same in the office of FSL, Rohini. He went to FSL Rohini, Delhi and deposited the said exhibits over there in the office of FSL, Rohini and obtained the acknowledgment. Thereafter, he came back to PS and the acknowledgment was handed over to the MHCM. As long as the exhibits remained in his possession, the same were not tampered Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:39:49 +0530 State Vs. Harshit Jain Page No. 41 of 85 or allowed to be tampered. Thereafter, his statement was recorded by the IO.
(f) PW27Head Constable Rajesh deposed that on 22.12.2015, he alongwith SI Rakesh Rana and IO, Inspector Sanjay Bhardwaj reached in Rohini Court Room No. 110.
Outside the court room, ASI Anil, HC Naresh and HC Ved Prakash of Special Staff, Outer District met them. They had produced accused Harshit Jain and Gaurav Tyagi before the Ld. MM. He has further deposed that IO, Inspector Sanjay Bhardwaj moved an application before the Ld. MM for seeking permission to interrogate and after due permission, accused Harshit Jain and Gaurav Tyagi were interrogated and arrested in this case and both of them made their respective disclosure statements. He correctly identified accused Harshit Jain in the court. He has further deposed that both the accused were produced before the Ld.MM and one day PC remand of both the accused were granted and thereafter his statement was recorded by the IO in this regard.
(g) PW38 retired Inspector Gyanendra Singh deposed that on 24.02.2016 he was posted at Kamla Market as a senior finger print expert. On that day, he received scene of crime examination report No. 2274/15 dated 19.12.2015 with lift of chance print Marked Q1, photographs of chance print Marked Q1 with negatives, specimen foot/palm print slips of Gaurav Tyagi and Harshat Jain. He compared the chance print marked Q1 with specimen prints of abovenamed persons and found not identical.
Digitally signed by SHEFALISHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No. 4216:40:00 of 85 +0530 He gave detailed report dated 15.03.2016 with forwarding letter Ex. PW38/A bearing my signature at point A and also signed by Director of Finger Print Bureau at point B. The said report is duly forwarded vide memorandum Ex. PW38/B bearing the signature of Director at point B.
(h) PW39 Mr. Surya Prakash deposed that he was working as Account Manager, Hasanpur Depot, Patpatganj, Delhi since 2009. He has further deposed that Gaurav Tyagi s/o Sh.
Sanjay Tyagi, DOB 03.07.1990, came to their depot for employment as a driver. Gaurav Tyagi was issued temporary identity card of the depot for entry in the depot. The temporary identity card was issued by Sh. Gaurav Kumar, Accountant of their branch. He identified the writing and signature and stamp of their depot at point A. He has further deposed that he had worked with Sh. Gaurav Kumar. The photocopy of the temporary identity card is Ex. PW39/A. PW HC Ved Prakash cited at Sr. No. 32 in the list of witnesses was discharged by Ld. Addl. PP for the State being witness of repetitive facts as deposed by PW28 ASI Anil and PW29 HC Naresh.
13. STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C After closure of PE, the statement of the accused Harshit Jain was recorded u/s 313 Cr.P.C. on 26.07.2024, wherein Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:40:14 +0530 State Vs. Harshit Jain Page No. 43 of 85 he denied all the evidence put to him and stated that he was implicated in the present case by the police and they have not investigated the present case fairly. On the day of incident, he went to the house of his grandfather where his grandmother was lying in pool of blood. He tried to lift his grandmother alongwith his grandfather and during that process his clothes and shoes were stained with blood. Later on, his uncle Manoj Jain left him at his house situated at Laxmi Nagar after seeing his condition. On 21.12.2015, he was called at police station Prashant Vihar and he visited there and then only he was falsely implicated in the present case. During police custody, police officials obtained his signatures forcibly on certain papers which were converted into various incriminating documents. Case properties were planted upon him. Manipulated CCTV footage were procured by police only in order to strengthen the prosecution story. He further submitted that on the alleged date of incident, he called his grandfather that he would be coming to their house for collecting his clothes. After sometime, he again called and his grandfather apprised that he is in the park. After roaming in park for sometime, his grandfather left for his house and he was just following him. When his grandfather entered into the house, he saw his grandmother was lying in pool of blood. He also tried to lift his grandmother alongwith his grandfather and during that process his clothes and shoes were stained with blood. After sometime, police reached there, as he was in semi conscious Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:40:25 +0530 State Vs. Harshit Jain Page No. 44 of 85 condition (weeping loudly), he was taken to another house by his uncle Sh. Manoj Jain when grandmother was shifted to hospital.
14. Accused chose not to lead defence evidence and accordingly matter was fixed for final arguments which was concluded on 13.08.2024.
15. ARGUMENTS I have heard Mr. Nishant Kumar, Ld. erstwhile Addl. PP for the State and Ms. Promila Singh, Ld. Addl. PP and Mr. Anuj Arya and Mr. Pradeep Rana, Ld. counsels for the accused.
It was argued by Ld. Counsel for the accused Mr. Anuj Arya and Mr. Pradeep Rana that all the material prosecution witnesses have not supported the case of the prosecution and the CCTV footage is manipulated as the concerned witness PW30 had not signed the seizure memo. There was no motive for the accused to murder his own grandmother. The recovery, if any, has been falsely planted to strengthen the false prosecution story. The blood stained shoes were only due to the fact that the accused helped PW11 to lift the body from the bed. That the complete chain of events pointing out towards the guilt of the accused is missing and thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt and accused Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No. 45 of 85 16:40:38 +0530 deserves acquittal.
On the other hand, it was argued by Ld. Addl. PP on behalf of the State that the accused had confessed his guilt before the other police officials which also led to a subsequent recovery of the weapon of offence and other material case property hence it is a relevant fact in terms of Section 27 of the Evidence Act.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved. No defence evidence has been led by the accused. His presence on the spot has been admitted by him and even PW11 and the accused was seen entering and existing the society in the CCTV footage regarding which there is a categorical court observation. U/s 106 Evidence Act it was incumbent upon the accused to explain the circumstances which were in his special knowledge which the accused failed to discharge the burden thereof. There is sufficient forensic evidence which proves that the offence had been committed by the accused and thus he deserves to be convicted.
16. I have heard the arguments at length and perused the entire record.
FINDINGS
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17. The accused Harshit Jain had been charged for the commission of offence punishable under Section 302 R/W Section 392/394/397 IPC.
Briefly stated, the prosecution story based on circumstantial evidence, on 19.12.2015 on receipt of DD No. 27A regarding murder of an old aged lady Inspector Sanjay Bhardwaj alongwith staff reached at the spot of murder at M- 2/71, Ballabh Vihar Society, Sector-13, Rohini, Delhi where Sh. Roshan Lal Jain, husband of deceased and grandfather of accused Harshit Jain met them and one old lady was found dead lying in a pool of blood. Articles were scattered in the room. Roshan Lal Jain identified the dead body of his wife Smt. Kailashwati, aged 74 years. A red colour shawl was used for strangulating the old lady and there was injury on the head of dead body. Blood was lying on the floor. There was blood stained foot marks outside the bedroom in the floor of the lobby. Inspector called mobile crime team and Forensic expert from FSL and recorded statement of complainant Roshan Lal Jain to the effect that he alongwith his wife Kailashwati and son Manoj Jain were residing at Ballabh Vihar Society, Sector-13, Rohini, Delhi. On 19.12.2015 at about 3.30 pm he went to park and his wife Kailashwati was alone. At about 5.30 pm when he came back to home he found that his house was bolted from outside and lights were on. When he entered his house, he found that his wife was found dead.
One shawl was strangulated on her neck and blood Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:41:06 +0530 State Vs. Harshit Jain Page No. 47 of 85 was oozing from her head and scattered on the bed and on the floor. He has stated that when he left for park, his wife was alone and she bolted the door from inside and during this period someone had murdered her wife. On the basis of his statement offence u/s 302 IPC was made out. Inspector Sanjay Bhardwaj sent Const. Pankaj to PS for registration of FIR and investigation of this case was marked to him. Dead body of Kailashwati was sent to BSA hospital Mortuary for preservation. Cash and jewellery articles were found missing.
During investigation, IO prepared site plan at the instance of complainant. IO called Crime team and FSL Rohini team at the spot. Exhibits were collected and taken into police possession. IO obtained CCTV footage where two boys could be seen entering the society at 3:54 pm and exiting at 5:28 pm in suspicious circumstances. IO had shown the CCTV footage installed in the society to Ishwar Prasad (plumber), Puspha(maid) and Upender Lal (liftman), complainant Roshan Lal and after seeing the CCTV footage, they identified the red T shirt boy as Harshit Jain who was grandson of deceased and one boy wearing black colour sweater who accomplice him at the time of incident. On 22.12.2015 vide DD No. 34B ASI Anil informed that they had arrested Harshit Jain S/o Anil Jain and CCL 'GT' who gave disclosure statements. During investigation, IO seized the hard sick of DVR of CCTV camera alongwith certificate u/s 65 B. On 15.01.2016, IO collected PM report from BSA hospital.Digitally signed by SHEFALI
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Thereafter, after investigation of this case was marked to Inspector Parveen Kumar. During investigation, IO got the age verification of CCL "GT" and his date of birth was found to be 03.07.1998 and he was declared CCL by Ld. MM and was produced before the JJB. During age verification, the date of birth of accused Harshit Jain came to be 02.09.1994 and he was a major at the time of offence.
18. At the very outset, it is relevant to quote the law. The relevant Section is reproduced as under:
SECTION 299 IPC "Culpable homicide--
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
SECTION 300 IPC "Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
-- Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:41:32 +0530 State Vs. Harshit Jain Page No. 49 of 85 Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid".
SECTION 302 IPC "Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine".
Section 392 in The Indian Penal Code, 1860
392. Punishment for robbery.Digitally signed by SHEFALI
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--
Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine;
and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Section 394 in The Indian Penal Code, 1860
394. Voluntarily causing hurt in committing robbery.--
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 397 in The Indian Penal Code, 1860
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--
If, at the time of committing robbery or dacoity, the offender uses any deadly Digitally signed by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHEFALI Date:
State Vs. Harshit Jain SHARMA Page No. 2024.09.09 51 of 85 16:41:52 +0530 weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
19. PRESUMPTION OF INNOCENCE It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:42:01 +0530 State Vs. Harshit Jain Page No. 52 of 85 Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, it is a settled law that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
20. At the very outset, it is pertinent to mention that the whole case of the prosecution is based on circumstantial evidence.
21. Before moving forward, it is imperative to analyse the law related to circumstantial evidence based on the last seen alive principle.
In the landmark judgment of Sharad Birdhi Chand Sarda vs State Of Maharashtra AIR 1984 SC 1622, Hon'ble Supreme Court has held that:
"3:3. Before a case against an accused vesting on circumstantial evidence can Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No. 53 of +0530 16:42:14 85 be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091. [163C] and reiterated in Tufail (Alias) Simmi v. State of Uttar Pradesh [1969] 3 SCC 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656; Shivaji Sahabrao Babode & Anr. v. State of Maharashtra [1973] 2 SCC 793.
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence.
22. In Madho Singh Vs. State of Rajasthan 2003 (2) crime 111 (SC) Hon'ble Supreme Court held that:Digitally signed
SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:42:26 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 54 of 85 "the last seen together has to be applied cautiously and in such a prudent manner that unless the court get some circumstantial or corroborating evidence the accused should not be convicted on the basis of last seen theory done if the accused provides such a chain of evidence that benefit of doubt arises.
23. Nizam Vs. State of Rajasthan decided on
04.09.2015 Hon'ble Supreme Court relying on State of Rajasthan Vs. Kashiram (2006) 12 SCC 254 held as under:
"Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 State Vs. Harshit Jain Page No. 55 of 16:42:37 85 +0530 the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:42:50 +0530 State Vs. Harshit Jain Page No. 56 of 85 accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 SCALE 319."
24. In the light of aforesaid case law, I now proceed to delve upon the evidence adduced on behalf of the prosecution.
25. MATERIAL WITNESSES The prosecution has heavily relied upon the testimony of PW7, PW10, PW11, PW21, PW25 and PW30.
26. PW7 Ishwar Prasad was the plumber in the society who had deposed that he did not know much about the case personally and had only heard that in the month of December, Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No.16:43:00 57 of 85+0530 2015, one old aged lady had been murdered at house No. M-2/71, Vallabh Vihar Society. Although in his examination, he did not support the case of the prosecution but he was cross-examined by the Ld. Addl. PP for the State at length and was confronted with his earlier statement Ex. PW7/A wherein he had stated that he had seen the two boys i.e. accused Harshit Jain wearing red colour T shirt alongwith another person wearing black colour sweater on the roof of the society.
27. PW10 Pushpa was the maid servant of the society and also worked in the house where the murder had taken place. She was thoroughly cross-examined by the Ld. APP for the State and confronted with her earlier statement Kar. PW10/A. It is pertinent to mention that she correctly identified the accused Harshit Jain who was present in the Court and being the grandson of the deceased and Roshan Lal.
28. PW11 Roshan Lal (grandfather of the accused and husband of the deceased) proved that at about 3:30 pm, he left his house and went to park for walking and his wife Kailashwati remained in his house. When he reached in the park he again received a call from his grandson accused Harshit Jain that he was coming and asked from him where he was. He told him that he was walking in the park and thereafter he told him that he would also reach the park and he was also bringing juice Digitally signed by SHEFALI SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHEFALI SHARMA State Vs. Harshit Jain SHARMA Date:
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He further stated that at about 4:00 pm, his grandson accused Harshit Jain came in the park and he gave him juice for drinking. Accordingly, he drank the same and started walking together while talking to each other.
He has further deposed that at about 5:30 pm, he alongwith his grandson accused Harshit left the park and at that time, accused told him that he would follow him after some time.
He has further deposed that when he reached his house, he found that main door of the house was already opened. He went inside his house. In the middle room, on the bed his wife was lying in a pool of blood. One blood stained knife and blood stained jug were lying on the bed.
In the meanwhile, his grandson accused Harshit also came there. He alongwith accused Harshit Jain tried to lift his wife. In this process, his clothes as well as clothes of Harshit Jain were blood stained and the shoes of Harshit Jain was also blood stained.
29. Ld. counsel for the accused had vehemently argued that most of the material prosecution witnesses have not supported the case of the prosecution and thus accused deserves acquittal.
The Hon'ble Superior Courts on number of occasions have laid down the Principles to be kept in mind while dealing Digitally signed by SHEFALI SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA State Vs. Harshit Jain SHEFALI Page No. 59 ofDate:
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with the testimony of hostile witnesses. The Hon'ble Supreme Court in the latest judgment of Ravasaheb @ Ravasahebagouda vs The State Of Karnataka decided on 16 March, 2023, has again reiterated the said Principles which are as follows:
Evidence of hostile witness:
a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible.
Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable;
b) The evidence of a hostile witness can form the basis of conviction.
c) The general principle of appreciating the evidence of eye-
witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. [Mrinal Das Vs. State of Tripura (2011) 9 SCC 479] 17.2 Effect of omissions deficiencies:
Evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution's case. [Rohtash Kumar Vs. State of Haryana (2013) 14 SCC 434; Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537; and Karan Singh Vs. State of Uttar Pradesh (2022) 6 SCC 52] 17.3 Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:State Vs. Harshit Jain Page No. 60 of 85
2024.09.09 16:43:36 +0530 Reliance on single witness:
If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner.
[Karunakaran Vs. State of Tamil Nadu (1976) 1 SCC 434; and Sadhuram Vs. State of Rajasthan (2003) 11 SCC 231] 17.4 Testimony of a close relative:
30. In the present case, from the testimony of PW11 Roshan Lal it is at least clear that the accused Harshit Jain, who normally does not live in the premises but stayed somewhere else alongwith his parents was present on the spot. PW11 categorically proved that on 19.12.2015 he had received a call from the accused that he would reach at their house at about 3.30 pm and about 3.30 pm the said witness left the house when the deceased Kailashwati was alone in the house. He stated that at about 4 pm, the accused Harshit Jain reached the park where the witness had gone for a walk and as per the version of the witness the accused brought him some juice for drinking and then he returned at 5.30 pm in the house and the accused Harshit Jain came later. However, the version of the said witness is contrary to the CCTV footage, according to which, the accused can be seen going in the society at about 3.54 pm and exiting at 5.28 pm alongwith other person. If the accused had gone in the park with the witness and had reached back to the house even after 5.30 when the witness reached, then how at 5.28 pm the accused had been caught exiting the society in the CCTV Digitally signed by SHEFALI SHARMA SHEFALI Date:
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA 2024.09.09 State Vs. Harshit Jain Page No. 16:43:51 61 of 85 +0530 footage. The identity of the accused in the CCTV footage cannot be disputed as there is a categorical Court observation that face of accused Harshit Jain is clearly visible.
Further, PW11 had stated that his grandson accused came in the park and gave him some juice to drink at about 4 pm. Firstly, no explanation by the witness has been given as to when and from where the juice was brought. Whether it was home made by his wife who was last left alone in the house or purchased by the accused from the juice shop. As such, this version is highly improbable in the wake of the CCTV footage wherein if the accused can be seen at 3.54 entering the society and it is highly improbable that he would reach the park with the juice by 4 pm. It appears on the face of it that the said witness being the grandfather is trying to save the accused and his testimony thus has to be scrutinised keeping in view that his version is contrary to the actual CCTV footage and to his statement given earlier.
31. Be that as it may, the said witness has at least proved the presence of blood stained knife and blood stained jug in the house and further admitted that some cash was missing from the house. He also admitted his signatures on the seizure memo of a whiskey bottle Ex. PW11/C bearing his signatures at point A.
32. PW12 Manoj Jain, uncle of the accused, proved Digitally signed by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHEFALI Date:
State Vs. Harshit Jain SHARMA 2024.09.09 Page No. 62 of 85 16:44:05 +0530 that when he alongwith his father PW11 and two other brothers checked the house they found some jewellery articles and cash were missing.
33. PW25 Upender Lal in his further examination in chief recorded on 16.10.2019 deposed that in camera No. 16 an entry and Exit gate time 3:54 and 5:28 pm two persons are seen entering and exiting in the society. The CCTV footage was played and in the footage dated 19.12.2015 in the camera No. 16 at about 17:28:01 (5.28 pm) two boys are visible while coming out of the main gate of the society. One boy carrying a bag on his right shoulder and another boy who followed him wearing red colour T shirt and carrying a jacket type cloth on his right shoulder. The red colour T shirt wearing boy was also carrying a bag in his left hand. The boy who was wearing red colour T shirt can be seen crossing the road where one rickshaw was stationed and he boarded the same and went away. This was the footage of the exit.
34. In the CCTV footage dated 19.12.2015 of camera No. 16 at 15:54:41 (about 4 pm) the same two boys were seen coming together towards the main gate of the society, one boy wearing the said red colour T shirt and both boys entered the gate together in the society. This was the footage of the entry in the society. Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
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35. Although the witness PW25 when asked that any of the two boys visible in the footage are present in the Court, he failed to identify but there is a categorical court observation which is as follows:-
"Court observation : - In the CCTV footage dated 19.12.2015 in camera No. 16, at 17:28:01 and 15:54:41, the faces of both the boys are clearly visible including that of the accused present in the court today i.e. Harshit Jain."
36. The pendrive containing the said footage has been proved by the prosecution as PX. Not a single question in cross- examination it has been put to the said witness that the said camera was not functioning properly or that the footage was doctored or that he had never earlier seen the footage and identified the accused. In the wake of the court observation, it can be clearly seen that the said witness was deliberately not identifying the accused and the electronic and documentary evidence as observed by the Court itself while recording the testimony, speaks louder for itself than the oral testimony of the said witness.
Thus, the presence of the accused on the spot at the relevant time stands clearly established.
Digitally signedSHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:44:25 +0530 State Vs. Harshit Jain Page No. 64 of 85
37. Moving forward to trace out the other links of circumstantial evidence, I shall now delve upon the other vital piece of evidence.
38.MEDICAL /FORIENSIC EVIDENCE PW13 Dr. Mukesh Kumar, SR, FMT, BJRM Hospital and PW15 Dr. Sandeep Garg proved the external and internal injuries in the postmortem report no. 811/15 dated 20.12.2015.
In their opinion, the cause of death was due to combined effect of asphyxia and hemorrhagic shock as a result of ligature strangulation and multiple injuries in the head and neck which taken together were sufficient to cause death in ordinary course of nature. The ligature strangulation could be caused by the ligature material found on the neck (i.e. shawl).
Injury no. 1 & 2 could be caused by a sharp edged weapon and injury no. 3 to 14 could be caused by blunt force.
Injury no. 1 & 2 were likely to be perimortem and injuries no. 3 to 14 were antemortem and fresh in duration prior to the death. The manner of death in this case was homicidal in nature. Viscera was preserved.
The detailed PM report NO. 811/15 dated 20.12.2015 running into 8 pages is proved as Ex. PW13/A bearing signatures of Dr. Mukesh Kumar PW13 at point A and signature of Dr.Sandeep Garg PW15 at point B on each page.
Digitally signed by SHEFALI SHARMASHEFALI Date:
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA 2024.09.09 State Vs. Harshit Jain Page No. 65 of 85 16:44:38 +0530 PW15 Dr. Sandeep Garg, MD, Forensic Medicine, SR, Dr. BSA Hospital, Rohini, was again examined on 02.03.2023 and he proved the subsequent opinion regarding the weapon of offence(i.e. the metal jug). PM report was perused and after examination, he was of the opinion that injury mentioned in the postmortem report except injury No. 1 and 2 could be possible by the weapon (metal jug) examined. He gave his detailed report Ex. PW15/X. The said witnesses PW14 and PW15 have not been cross-examined by the Ld. counsel for the accused despite due opportunity. Not a single question had been put that the shawl recovered was not the ligature material or that the metal jug recovered could not have resulted in the injuries in the post mortem.
At this stage, attention is drawn to the DNA anaylysis report Ex. PX4. It had been categorically opined by the concerned doctor Ms. Sunita Gupta FSL who was examined as PW36 that on the DNA analysis performed on Ex. 1 ligature material (i.e. the shawl) is sufficient to conclude that DNA profile generated from the source exhibits i.e. ligature material is similar with DNA profile generated from the source Ex. 3 i.e. the blood stained papers recovered from the possession of the accused Harshit Jain and Ex. 4 i.e. the metallic jug which was recovered at the instance of the accused Harshit Jain from the kitchen of the house where the murder had taken place.
Digitally signed by SHEFALI SHARMASHEFALI Date: SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA 2024.09.09 16:44:48 State Vs. Harshit Jain Page No. 66 of+0530 85
Vide the report Ex. PX3, it has been further concluded that on DNA analysis performed on Ex. 3 blood stained paper recovered from the accused Harshit Jain and the gauze piece cloth from the spot, metallic jug, clothes of the deceased is similar to the DNA profile generated from the source Exhibits i.e. the blood stained paper, metallic jug, clothes of the deceased and pants of the accused etc. Thus, from the medical and forensic evidence, it can be safely concluded that the death was caused by the ligature material (shawl) and other injuries by the metallic jug which was recovered at the instance of the accused and had the same DNA profile which matches to show that they were used by the accused.
Also PW16 Indresh Kumar Mishra, Assistant Director, Biology, FSL proved that Crime scene report Ex. PW16/A from where the exhibits were lifted from variouos parts of the house.
PW17 Parsu Ram Singh, Assistant Director, Physics FSL also proved the lifting of exhibits from the crime scene. The said witnesses have not been cross-examined by the accused despite due opportunity. Thus, it is not the case of the accused that the lifted exhibits were tampered with or the crime scene had been manipulated.
39. RECOVERY & DISCLOSURE Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:44:58 +0530 State Vs. Harshit Jain Page No. 67 of 85 It was argued by ld. Counsel for the accused that the metal jug and the knife which was seized I.e. the alleged weapon of offence had been falsely planted by the investigating agency upon the accused and the disclosure statement Ex. PW28/K cannot be considered as the same was given under police custody.
Analysing the evidence, the prosecution vide the testimony of PW16 Sh. Indresh Kumar Mishra, Assistant Director (Biology), FSL, Rohini, Delhi proved that he visited the crime of scene i.e. at M-2/71, Vallabh Vihar Apartment, Sector- 13, Rohini, Delhi. There on the presence of SHO and other police officials they lifted 7 exhibits from the different parts of the flat and kept in different envelopes and handed over to SHO, Inspector Sanjay Bhardwaj and his crime scene report is Ex. PW16/A.
39. PW17 Sh. Parshuram Singh, Assistant Director (Physics), FSL, Rohini, Delhi also deposed and proved on the same lines as deposed by PW16 Sh. Indresh Kumar Mishra.
40. PW18 HC Virender Singh deposed that on 19-12-
2015 he was posted at Mobile Crime Team, Outer District as a Ct. and working as a photographer. On that day, he along with Incharge Crime Team SI Ajit and HC Manoj, finger print proficient reached at the spot i.e. M-2/71, Vallabh Vihar Apartment, Sector-13, Rohini, Delhi and at the spot he took 37 photographs from different angles on the directions of IO. The Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 State Vs. Harshit Jain Page No.16:45:10 68 of +0530 85 said photographs are Ex. PW18/A1 to PW18/A37. He had brought the negatives Ex. PW18/B1 to Ex. PW18/B37.
No suggestion or question had been put to the said witnesses if the crime scene was manipulated and thus, the argument raised by the ld. Counsel for the accused does not seem to hold much force.
40. Further PW28 had proved that the Disclosure Statement of the accused was recorded by him which is proved as Ex.PW28/K bearing his signatures at point A.
41. As per the disclosure statement, the accused had led the police party near a Nala outside the Sulabh Shochalaya where the accused persons were hiding/sleeping in a room. From there inside the Nala, he got recovered one blue colour jeans pant of Levis having blood stains which was seized vide seizure memo proved as Ex. PW28/M. The jacket and two blood stains papers were also recovered from the possession of the accused which were seized vide seizure memo proved as Ex.PW28/G. Thus, blood stained shoes which were found inside the room of the Sulabh Shochalaya which were seized vide seizure memo Ex. PW28/H. Thereafter, the accused also got recovered the blood stained jug which was taken into possession vide seizure memo Ex. PW28/Q from the kitchen of the flat where the murder had taken place. Digitally signed SHEFALI by SHEFALI SHARMA SHARMA Date: 2024.09.09 16:45:21 +0530 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 69 of 85
42. It was argued by ld. Counsel for the accused that any confession made in the presence of the police officials cannot be considered as it is hit by the provisions of Section 25 of the Indian Evidence Act.
43. In this backdrop I proceed to delve upon the case laws laid down by the superior courts on the point of Section 27 of the Evidence Act.
44. In the case of Ramanand @ Nand Lal Bharti Vs. State of Uttar Pradesh Crl. Appeal 6465 of 2022 decided by the Hon'ble Supreme Court on 13.10.2022, held that:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
64. The conditions necessary for the applicability of Section 27 of Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:45:32 +0530 State Vs. Harshit Jain Page No. 70 of 85 the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483 Two conditions for application - (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered Earabhadrappa v.
State of Karnataka: AIR (1983) SC 446"
45. In the Constitution Bench decision of Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, in Paragraph71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:45:44 +0530 State Vs. Harshit Jain Page No. 71 of 85 into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
46. The scope and ambit of Section 27 of the Evidence Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:45:54 +0530 State Vs. Harshit Jain Page No. 72 of 85 Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
State Vs. Harshit Jain 2024.09.09 Page No. 73 of +0530 16:46:07 85 added "with which I stabbed A"
these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
47. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of Confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. The "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. Digitally signed by SHEFALI SHARMA SHEFALI Date:
SHARMA 2024.09.09
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48. At this stage, it is also imperative to note Section 8 of the Evidence Act. In case of Prakash Chand Vs. State AIR 1979 SC 400, it was held that even if we hold disclosure statement made by the accused is not admissible under Section 27 of the Evidence Act it is still relevant under Section 8 of the Evidence Act.
49. In the present case, the kitchen of the house from where the metal jug was found was within the special knowledge of the accused. Even, the clothes found in the Nala and the blood stained shoes as well as the blood stained papers recovered in the room of the Sulabh Shochalaya where the accused was hiding was in his special knowledge. It is was incumbent upon the accused to explain the presence of the metal jug and the aforesaid blood stained articles which are stated to have been recovered at the instance of accused. Although, disclosure is a weak piece of evidence but the recovery of jug and blood stained papers at the instance of the accused corroborates his version and as such it was incumbent upon the accused to explain the presence of metal jug lying inside the kitchen of the flat in question as it was not a place of easy access to any third person.
PW11 had made a futile attempt to save his Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar 16:46:29 +0530 State Vs. Harshit Jain Page No. 75 of 85 grandson as discussed above by saying that the blood stained shoes was because of the fact that the accused tried to lift the body alongwith PW11. However, as already discussed, the CCTV footage depicts otherwise keeping in view the timing when the accused had entered and left the society.
50. Thus, the arguments raised by ld. Counsel for the accused that the metal jug or the blood stained clothes had been planted does not seem to have much force as this was a fact especially within the knowledge of the accused and applying the principle of Confirmation by Subsequent events enshrined in Section 27 Evidence Act as discussed above, were in the special knowledge of the accused and thus, the recovery of these articles are a relevant fact and a link in the chain of circumstances.
51. MOTIVE & OPPORTUNITY TO COMMIT THE OFFENCE Coming to the aspect of motive and opportunity with the accused to commit the crime.
52. In the case titled as NANDU SINGH VERSUS STATE OF MADHYA PRADESH (NOW CHHATTISGARH), Special Leave Petition (Crl.) No(s). 7998 of 2021), it is held that by the Hon'ble Chief Justice of India that:Digitally signed by SHEFALI
SHEFALI SHARMA
SHARMA Date:
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State Vs. Harshit Jain Page No. 76 of 85
"Relying on Anwar Ali vs. State of
Himachal Pradesh, this Court made the 1(2020) 10 SCC 1665 legal position clear in following words:-
.......it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri vs. State of Bihar that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu Vs. State of Kerala (2010) 9 SCC 189, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused...........
The motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually prompted or ex-cited them to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one.
53. In the present case, the accused was certainly having ample opportunity to murder his grandmother as there was noone else in the house and the accused using the said opportunity Digitally signed by SHEFALI SHARMA SHEFALI Date:
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wanted to take away the money and the jewellery. The accused Harshit Jain could had easily over powered a female who was as such old aged and his entry in the house of his grandparents would as such not have been objected to by the grandmother by allowing him to enter the house on opening the gate. CCTV footage buttress the specific court observation regarding the entry and exit of the accused clearly proves his presence. PW11 and PW12 proved that cash and jewellery articles were found missing which were later recovered at the instance of the accused and thus, the prosecution successfully proved even the motive to commit the offence.
54. CONDUCT The conduct of the accused post occurrence of crime requires a detailed deliberation. Firstly, he takes a story of going and meeting his grandfather and giving him some juice which is as discussed above false flat in the wake of the CCTV footage proved by the prosecution and the consequent recovery and DNA anaylysis report. After committing the offence, he mysteriously hides alongwith his associates in Sulabh Shochalaya from where the recovery of the case property had been made including the blood stained paper, knife, blood stained pants etc. The conduct of the accused hiding the metallic jug with which several injuries were inflicted in the kitchen of the house and also not disclosing about his associate (CCL 'GT' ) to anyone who was clearly Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date:
2024.09.09 16:47:07 +0530 State Vs. Harshit Jain Page No. 78 of 85 visible in the footage entering and exiting the place alongwith him and was hiding in the Sulabh Shochalaya alongwith him. This mysterious conduct speaks volumes of his guilt.
55. PRESUMPTION UNDER SECTION 106 OF THE EVIDENCE ACT Moving forward from the testimony of prosecution witnesses and the CCTV footage played in the pendrive Ex. PX during the testimony of PW25 with a categorical court observation that the presence of the accused Harshit Jain entering and exiting from the society has been duly established. The accused who did not usually reside there, it was incumbent upon him to explain as to why he had gone to the said house. Story of giving juice to his grandfather falls flat in the wake of categorical court observation regarding his entry and exit.
56. He mysteriously hide in Sulabh Shochalaya alongwith his associate post the crime instead of informing his family members. The weapon of offence was recovered at his instance from a place (kitchen of the house) which is not easily accessible to the public. DNA analysis report also points towards the guilt of the accused as the same was found matching with the recovered articles, blood stained papers and the metallic jug. These were facts which were within the special knowledge of the accused and thus, presumption u/s 106 Evidence Act gets Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 16:47:21 +0530 State Vs. Harshit Jain Page No. 79 of 85 squarely attracted in this case.
57. At this stage reliance is placed on the case titled as Prem Singh Vs. State of NCT of Delhi, Criminal Appeal No. 01 of 2023 decided on 02.01.2023 by the Hon'ble Supreme Court, it is held that:
14........Moving on to the other applicable provisions and principles, we may usefully take note of Section 106 of the Evidence Act, casting burden of proving a fact especially within knowledge of any person, and a few relevant decisions in regard to its operation qua an accused. 14.1.
Section 106 of the Evidence Act reads as under: -
"106. Burden of proving fact especially within knowledge. --
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
14.2. In the case of Trimukh Maroti Kirkan v. State of Maharashtra:(2006) 10 SCC 681 "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be eXtremely difficult for the prosecution to lead evidence to establish the guilt of the accused if Digitally signed by SHEFALI SHARMA SHEFALI Date:
SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA 2024.09.09 16:48:00 State Vs. Harshit Jain Page+0530 No. 80 of 85 the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape.
Both are public duties. (See Stirland v. Director of Public Prosecutions 8 --
quoted with approval by Arijit Pasayat, J. in State of Punjab v.
Karnail Singh.) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate eXtremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him......."
58. In the case of Sudru v. State of Chhattisgarh:
(2019) 8 SCC 333 had been the one where the appellant was charged of the murder of his son in his house; and the principal prosecution witnesses, including wife of the appellant, turned hostile to the prosecution but, the facts did come out of their testimony that the deceased was left alone in the company of the appellant and the neXt day, the deceased was found dead. It Digitally signed by SHEFALI SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar Date:
SHARMA 2024.09.09 State Vs. Harshit Jain Page 16:48:14 No. 81 of 85 +0530 was held:
"8. In this view of the matter, after the prosecution has established the aforesaid fact, the burden would shift upon the appellant under Section 106 of the Evidence Act. Once the prosecution proves, that it is the deceased and the appellant, who were alone in that room and on the neXt day morning the dead body of the deceased was found, the onus shifts on the appellant to eXplain, as to what has happened in that night and as to how the death of the deceased has occurred.
59. Further, it was argued by the ld. Counsel for the accused that the police officials did not carry the investigation in a fair manner and falsely implicated the accused.
60. All the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC 625.
61. Further, all the material witnesses were the relatives of the accused and there was no reason to believe that they would falsely implicate him in such a heinous crime.Digitally signed by SHEFALI
SHEFALI SHARMA SHARMA Date:
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62. CONCLUSION It is a settled law that in case of circumstantial evidence, the paramount requirement is that every possible link in the chain should be complete along with other incriminating circumstances including motive and the recovery of weapon of offence and should unequivocally point towards the guilt of the accused and cannot be solely based on the last seen testimony and reliance is placed on the judgment of Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 Supreme Court 1622(supra). In the present case from the detailed findings above and the relevant case laws the prosecution has been able to prove beyond reasonable doubt that : I. The presence of the accused on the spot and his entry and exist as proved in the CCTV footage at the relevant time with categorical Court observations that accused is clearly visible. ii. The accused had the motive to commit robbery as is proved by the prosecution witness that the jewellery articles, cash, artificial jewellery were found missing. iii. There was recovery of the metal jug which was the weapon of offence subsequent upon the disclosure of the accused from inside the house which is not a common public place. iv. The subsequent opinion proved Ex. PW15/X clearly reveals that the injury (injury No. 1 and 2 could be possible by a weapon i.e. the metallic jug) which was recovered at the instance of the accused. Digitally signed by SHEFALI SHARMA SHEFALI Date:
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State Vs. Harshit Jain Page No. 83 of 85
v. From the DNA analysis report Ex. PX-4 it is sufficient to
conclude that DNA profile generated from the source exhibits i.e. ligature material is similar with DNA profile generated from the source Ex. 3 i.e. the blood stained papers recovered from the possession of the accused Harshit Jain and Ex. 4 i.e. the metallic jug which was recovered at the instance of the accused Harshit Jain from the kitchen of the house where the murder had taken place.
vi. The conduct of the accused post occurrence that he tried to go to the park and have a walk and gave juice which was highly improbable and contrary to the CCTV footage in which he was seen alognwith the other co-accused and then hiding in the Sulabh Shochalaya.
Vii. There was no reason for false implication of the accused by the own family members at the time of the investigation of the case as he was the grandson of the deceased and it is highly improbable that all the family members would give their statement to falsely implicate the accused.
Thus, all the circumstances as proved by the prosecution beyond reasonable doubt points only towards the guilt of the accused and no other hypothesis is possible. The circumstances proved are conclusive in nature and complete the chain of events.
63. Thus, the accused Harshit Jain is held guilty and is Digitally signed SHEFALI by SHEFALI SHARMA SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar SHARMA Date: 2024.09.09 State Vs. Harshit Jain Page No.16:48:44 84 of 85+0530 convicted for the offences u/s 302 IPC and also u/s 392/394/397 IPC.
64. Copy of the judgment running into 87 pages be provided to the accused free of cost.
65. Matter be listed for arguments on the quantum of sentence on 22.10.2024. In the meanwhile, the convict and the Ld. Addl. PP for the State are directed to file their respective affidavits in terms of the judgment of the Hon'ble High Court of Delhi titled as Karan Vs. State of NCT of Delhi Criminal Appeal No. 352/2020 decided on 27.11.2020. Digitally signed by SHEFALI SHEFALI SHARMA SHARMA Date:
2024.09.09 16:48:55 +0530 Dictated and announced in the open (Shefali Sharma) Court on 09.09.2024 Addl. Session Judge-02 (running in 85 pages) (North), Rohini Courts/Delhi SC No. 57318/16 , FIR No. 1603/15 PS Prashant Vihar State Vs. Harshit Jain Page No. 85 of 85