Delhi District Court
State vs Avdhesh on 29 April, 2025
IN THE COURT OF MS. VANDANA JAIN:
ADDL. SESSIONS JUDGE-03/SPECIAL JUDGE
(COMPANIES ACT), DWARKA COURTS, NEW DELHI.
CNR No. : DLSW01-011083-2021
SC No. : 726/2021
State Vs. : Avdhesh
FIR No. : 911/2020
U/s. : 302 IPC
P.S. : Uttam Nagar
1. CNR No. of the Case : DLSW01-011083-2021
2. Date of commission of offence : 14.11.2020
3. Date of institution of the case : 10.02.2021
4. Date of committal to Sessions Court : 12.11.2021
5. Name of the complainant : Ankit Kumar
6. Name of accused, parentage &
address : Avdhesh
S/o Sh. Dilip Kumar
Singh,
R/o G-9, Om Vihar,
Phase-V, Uttam Nagar,
Dwarka, Delhi.
7. Offences complained of in
chargesheet : 302 IPC
8. Offences under which charges
were framed : 302 IPC
9. Plea of the accused : Pleaded not guilty
10. Date on which arguments heard : 24.04.2025
11. Date of final order : 29.04.2025
12. Final order : Acquitted
SC No.726/2021 Page No. 1 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
JUDGMENT
Facts
1. The investigation of the present case was set into motion on receiving DD No.70A dated 14.11.2020 wherein it was recorded 'Bhai ne pita ko jaan se maar diya'. The said DD was marked to SI Vipin Malik who alongwith HC Gopal went to spot i.e. G-9, Om Vihar, Phase-V, Uttam Nagar, Delhi where Beat Staff was already present.
2. SI Vipin Malik recorded the statement of complainant Sh. Ankit Kumar wherein he stated that he has one sister Rimjhim and one brother Avdhesh i.e. accused. He is residing in a rented accommodation and his brother Avdhesh alongwith their father (deceased) was residing separately at G-9, Om Vihar, Phase-V, Uttam Nagar. Four-five days before the date of incident, accused took his family members to Bihar and left them there and he alone came back to Delhi. Accused is a drunkard and used to quarrel with his father on account of asking money to drink liquor. A day before the incident, when his father came to the house of his sister to have food, accused Avdhesh also came there and quarreled with his father and repeatedly asked for money for drinking liquor. Thereafter, accused left from there. Since his father used to come to the house of his sister daily to have food, on the date of incident i.e. on 14.11.2020 when his father did not come to have food at his sister's house, he (complainant) went to call his father where he found that main gate of house was slightly closed. When he opened the main gate of the house of his father, his brother i.e. accused Avdhesh came SC No.726/2021 Page No. 2 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar from inside in perplexed condition and fled away from there saying "Maine papa ko maar diya". When he entered the house, he found that Almirah was lying opened and all the household articles were scattered in the room. His father was lying on the bed having a blanket on him. When he took away the blanket, he found that one blanket was tied around the face of his father. He untied the blanket from the face of his father and he found that mouth of his father was tied with gamchha and neck of his father was tied with a chunni. When he untied the gamchha and chunni from the face and neck his father, he found that blood was oozing out from the nose of his father. His father was not responding and he was already dead. He called the police on 100 number.
3. On the basis of above statement, SI Vipin Malik prepared the rukka and got the FIR registered against the accused for the offence under Section 302 IPC. Crime team was called and spot was got inspected. After registration of FIR, further investigation of the case was marked to Insp. Harpal Singh. Dead body of deceased Dilip Kumar was shifted to hospital. Insp. Harpal Singh prepared the site plan at the instance of complainant and seized the exhibits i.e. blood stained chunni, gamchha, blanket, blood on cotton piece, blood stained plywood and control of plywood after sealing them in cloth pullandas. Insp. Harpal Singh collected the MLC of deceased Gaurav and also called the crime team at the spot and got the spot inspected. During further investigation, IO recorded the statement of Ms.Rimjhim, daughter of deceased. Accused was arrested at the instance of secret informer and he made disclosure statement wherein he disclosed that he hit twice SC No.726/2021 Page No. 3 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar on the head of his father with sil-batta. Accused also got recovered the said sil-batta from the nearby vacant plot which was seized. Exhibits were sent to FSL and after completion of investigation, chargesheet was filed against the accused for facing trial for the offence punishable under Section 302 IPC.
4. After compliance of Section 207/208 Cr.P.C, the case was committed to the Court of Sessions.
5. During the course of trial, supplementary chargesheet in respect of FSL report qua the exhibits sent to FSL was also filed, copy of which was duly supplied to accused.
Charges
6. Charge under Section 302 IPC was framed against accused on 15.03.2022 to which he pleaded not guilty and claimed trial.
Prosecution Evidence
7. Prosecution cited as many as 21 witnesses out of which 5 witnesses have been examined. Since accused admitted FIR no.911/2020; Certificate under Section 65B Evidence Act; GD No.70A dated 14.11.2020l; scaled site plan of the spot; scene of crime report dated 14.11.2020 with photographs and certificate under Section 65B of Evidence Act; PM Repot No.1861/2020 of deceased Dilip Kumar; Death report of deceased Dilip Kumar; MLC of deceased Dilip Kumar of DDU Hospital dated 14.11.2020; subsequent opinion of the weapon of offence dated 14.11.2020 and CDR & CAF of mobile No.9693791682 and SC No.726/2021 Page No. 4 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar 8252819536 as Ex.A-1 to Ex.A-10, the witnesses pertaining to aforesaid documents were dropped in view of the statement of the accused recorded under Section 294 CrPC.
8. Testimony of prosecution witnesses who have been examined is reproduced hereinunder:-
9. PW-1 Sh. Ankit Kumar is the complainant. He deposed as under:
" I was residing with my sister for about one year prior to the incident. I was working in a factory. We are two brothers. My elder brother is Avdhesh who is accused in present case is present today in Court (Correctly identified). I have one sister Rim Jhim. My elder brother Avdhesh who was residing along with his family and my father at G-9, Om Vihar, Phase-V, 40 Foota Road, Uttam Nagar. There was continuous quarrel between my father and accused Avdhesh for money. Accused Avdhesh is habitual drinker and he used to demand money from my father. On 13.11.2020 after doing my night duty, I came back to my home i.e. the house of my sister Rim Jhim. I received a call of my cousin and he asked me to go to village. After some time, my brother Avdhesh came there. I demanded Rs.1,000/- from accused as I had to go to village. Accused had given me assurance to arrange the money and thereafter, left the spot. After sometime, he came back and gave me Rs.1,000/-. Thereafter, he left. Around 12:00 PM - 12:30 PM, accused again came to our house, then, my sister asked him about my father. Accused informed that father had gone for work. Avdhesh again left the home and came back after sometime and I asked him about my father. Then, he replied that he don't know about whereabouts of my father. When, I insisted to know about my father then, accused starts crying. He also told me that his SC No.726/2021 Page No. 5 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar mobile phone and money has been stolen by one Vicky. I went to the house where my father was residing with accused. The room was found locked. My niece namely Lacho was also with me at that time. Thereafter, I broke the lock of room as sometime, I also used to lock from outside while my father used to sleep inside. So that I thought my father would be sleeping inside the room. I and my niece went inside the room and found scattered the household items. I noticed that my father was sleeping. I asked my niece to clear the room and when I removed the bed sheet from my father. I notice some cloth was found folded on his face. I also noticed one Chunni surrounded the neck of my father with a knot. I removed the cloth from the face and also remove the Chunni from the neck and felt that body of my father was cold. I raised alarm after going outside the room. Many of the neighbours came inside the room and on their asking, I made a call to the police and informed that my father had been murdered. Thereafter, I made a call to my sister and informed her about the incident. My sister came at spot immediately. After sometime, police also reached there. Police asked me as who had committed the crime. I told them I do not know anything and informed them that my brother Avdhesh was residing with my father. Police also inquired me about my brother and I told that I was not aware about the whereabouts of my brother. My sister informed the police officials that Avdhesh would be at her residence. But Avdhesh had already fled away from the house. I was taken to the PS by Vipin Sir. I do not know anything else about the case. Whatever I had seen, I have deposed today in Court."
Since PW-1 did not support the prosecution version, he was cross examined at length by Ld. Addl. PP for the State, however, he did not change his statement and did not state that accused had committed the offence.
SC No.726/2021 Page No. 6 of 41State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar PW-1 was duly cross examined by learned counsel for the accused.
10. PW-2 Smt. Rimjhim is daughter of deceased. She deposed as under:
"I am working in a private company. My husband is a plumber. Name of my younger brother is Ankit and name of my elder brother is Andhesh. Avdhesh is present in Court today as accused (Correctly identified). My father (since deceased) was residing with his son Avdhesh and daughter-in-law Bharti Devi at G-9, Om Vihar, Phase-V, Uttam Nagar. My father was a vegetable vendor.
When my father did not come for lunch on the day of Dhanteras in year 2020, I asked my brother Ankit to go to the residence of my father. Date I do not remember. Ankit went to the residence of my father and told me that my father had already expired. I do not know anything else about the case."
Since PW-2 did not support the prosecution version, she was cross examined at length by Ld. Addl. PP for the State, however, she did not change her version and did not state anything incriminating against the accused.
PW-2 was duly cross examined by learned counsel for the accused.
11. PW3 SI Vipin Malik deposed as under:
" On 14.11.2020, I was posted at PS Uttam Nagar as SI. On that day, I received DD No. 70A with regard to one brother had taken had murdered his father. Thereafter, I along with HC Gopal reached at the spot i.e. G-9, Om Vihar, Phase-V, Uttam Nagar, New Delhi. There I met complainant Ankit SC No.726/2021 Page No. 7 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar Kumar who told me that his brother Avdhesh Kumar had murdered his father and ran away from the house. Thereafter, I along with HC Gopal went inside the house and saw that body was lying on the single bed available in the room and the belongings of the room were scattered. Almira of the room was opened. The face of the deceased was towards the south direction and legs were towards the north direction and blood can be seen on his nose and blood was also lying on the bed. One cloth/Gamcha, one Chunni and one blanket was lying on the bed. All of them were blood stained and were lying near the body.
I called the crime team at the spot. Crime team reached at the spot and photographs of the spot were taken by crime team official. Spot was thoroughly inspected by officials of crime team. Body of deceased was sent to DDU Hospital through Ct. Karatara Ram in a private ambulance. Thereafter, I recorded statement of complainant Ankit which was attested by me at point B. In the meanwhile, Insp. Harpal reached at the spot. I prepared the Tehrir Ex.PW3/A bears my signature at point A and send HC Gopal to the PS along with original Tehrir for registration of FIR. Further investigation of present case was conducted by IO/Insp. Harpal. Site plan was prepared at the instance of complainant. In the meanwhile, HC Gopal came at spot along with copy of FIR and original Tehrir and certificate u/s 65-B of I.E. Act. Said documents were handed over to IO. Blood stained Chunni, cloth/Gamcha and blanket were seized by IO vide seizure memo already Ex.PW1/B, Ex.PW1/C and Ex.PW1/D respectively all bearing my signatures at point B respectively. The complainant had told in his statement that the said Chunni was used to strangulate his deceased father and he has untied the knot. Complainant had also told that the cloth/Gamcha was tied on the face of his father SC No.726/2021 Page No. 8 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar and he had untied the same. Complainant also stated that the blanket was covered on the face of his deceased father. The blood which was lying on the bed of the deceased was seized vide seizure memo already Ex.PW1/E bearing my signature at point B, with the help of cotton piece and the said cotton piece was kept in a plastic box and sealed with the seal of 'HS'. Blood stained piece of plywood and another piece of plywood without blood was seized vide seizure memo already Ex.PW1/F bearing my signature at point B. Thereafter, my statement under Section 161 Cr.P.C. was recorded by IO. The case properties were deposited in the Malkhana.
On 15.11.2020, IO/Insp. Harpal Singh received information from a secret informer that accused Avdhesh who had killed his father can be apprehended near Green Vatika, Nawada. Thereafter, I along with HC Gopal and IO/Insp. Harpal went to the spot. There we saw accused Avdhesh and IO arrested and personally searched the accused vide memos Ex.PW3/B and Ex.PW3/C respectively both bearing my signatures at point A respectively. IO also recorded disclosure statement of accused in my presence vide memo Ex.PW3/D bearing my signature at point A. Accused took us to the spot and pointing out memo was prepared at the instance of accused same is now Ex.PW3/E bearing my signature at point A. Accused told us that he had used Silbatta to hit his father on head and other parts of the body. He got the same recovered from the empty plot just adjacent to his house and IO seized the same vide seizure memo Ex.PW3/F bearing my signature at point A. Accused was sent to DDU Hospital for medical examination, where his clothes, nail clippings, blood sample were seized by the doctor. IO sealed the same along with sample seal of CMO DDU Hospital and seized the same vide seizure memo Ex.PW3/G bearing my SC No.726/2021 Page No. 9 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar signature at point A. Postmortem of deceased was got conducted and doctor seized the clothes and blood on gauge piece. The said things were also seized by IO along with two sample seals vide seizure memo Ex.PW3/H bearing my signature at point A. Seal was handed over to me by IO vide seal handed over memo Ex.PW3/I bearing my signature at point A. Thereafter, my supplementary statement statement was recorded by IO. Accused was sent to Tihar Jail.
Accused is present in the Court today (Correctly identified).
I can identified the case property, if shown to me.
At this stage, MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.1 written on it. Same is opened and one Chunni is taken out and shown to witness. Witness correctly identified the same. Said Chunni is now Ex.P1.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.2 written on it. Same is opened and one Gamcha having brownish stains is taken out and shown to witness. Witness correctly identified the same. Said Gamcha is now Ex.P2.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.3 written on it. Same is opened and one Blanket is taken out and shown to witness. Witness correctly identified the same. Said Blanket is now Ex.P3.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.4 written on it. Same is opened and one plastic box containing blood on cotton having brownish stains is taken out and shown to witness. Witness correctly identified the SC No.726/2021 Page No. 10 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar same. Said blood on cotton is now Ex.P4.
MHC(M) has produced case property i.e. one plywood having brownish stains duly covered with the help of white cloth and sealed with the seal of FSL S.Nn DELHI having serial no.5 written on it. Same is opened and shown to witness. Witness correctly identified the same. Said plywood is now Ex.P5.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.6 written on it. Same is opened and one piece of stone having brownish stains is taken out and shown to witness. Witness correctly identified the same. Said piece of stone is now Ex.P6.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.7 written on it. Same is opened and one shirt, pant/trouser, one underwear are taken out and shown to witness. Witness correctly identified the same. Same are now Ex.P7, Ex.P8 and Ex.P9 respectively.
MHC(M) has produced case property i.e. one plywood described as control plywood duly covered with the help of white cloth and sealed with the seal of FSL S.Nn DELHI having serial no.10 written on it. Same is opened and shown to witness. Witness correctly identified the same. Said plywood is now Ex.P10.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.11 written on it. Same is opened and one plastic box having blood on gauge piece is taken out and shown to witness. Witness correctly identified the same. Same is now Ex.P11.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.9 written on it. Same is SC No.726/2021 Page No. 11 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar opened and one plastic box having nail clippings of the accused is taken out and shown to witness. Witness correctly identified the same. Same is now Ex.P12.
MHC(M) has produced case property i.e. one yellow envelope bearing the seal of FSL S.Nn DELHI having serial no.8 written on it. Same is opened and clothes of the accused are taken out and shown to witness. Witness correctly identified the same. Same is now Ex.P13, Ex.P14, Ex.PW15, Ex.P16 and Ex.P17 respectively."
PW-3 was duly cross examined by ld. counsel for the accused.
12. PW4 Insp. Harpal Singh deposed as under:
" On 14.11.2020, I was posted at PS Uttam Nagar as Inspector (Investigation). On that day, I received information from SHO that a murder had taken place. Thereafter, I went to the spot i.e. G-9, Om Vihar, Phase-V, Uttam Nagar, New Delhi. There I met SI Vipin Malik, HC Gopal and Complainant Ankit Kumar. SI Vipin Malik prepared the Tehrir already Ex.PW3/A and send HC Gopal to the PS along with original Tehrir for registration of FIR. Thereafter, I carried further investigation of present case. Site plan was prepared by me at the instance of complainant, same is now Ex.PW4/A bearing my signature at point A. In the meanwhile, HC Gopal came at spot along with copy of FIR, original Tehrir and certificate u/s 65-B of I.E. Act and handed over the same to me. Blood stained Chunni, cloth/Gamcha and blanket were seized by me vide seizure memo already Ex.PW1/B, Ex.PW1/C and Ex.PW1/D respectively all bearing my signatures at point C respectively. The complainant had told in his statement that the said Chunni was seen by him tied on the neck of the deceased and he had untied the knot. Complainant SC No.726/2021 Page No. 12 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar had also told that the cloth/Gamcha was tied on the face of his father and he had untied the same. Complainant also stated that the blanket was covered on the face of his deceased father. The blood which was lying on the bed of the deceased was seized by me vide seizure memo already Ex.PW1/E bearing my signature at point C, with the help of cotton piece and the said cotton piece was kept in a plastic box and sealed with the seal of 'HS'. Blood stained piece of plywood and another piece of plywood without blood was seized by me vide seizure memo already Ex.PW1/F bearing my signature at point C. Supplementary statement of complainant with regard to site plan and statement of daughter of deceased Rimjhim were recorded by me. We tried to search for the accused but he was not traceable. Thereafter, I along with staff came back to PS. I recorded statement under Section 161 Cr.P.C. of SI Vipin Malik and HC Gopal. The case properties were deposited in the Malkhana. I also recorded statement of crime team.
On 14.11.2020 at about 11:30 PM, I received information from a secret informer that accused Avdhesh who had killed his father can be apprehended near Green Vatika, Nawada. Thereafter, I along with HC Gopal and SI Vipin Malik went to the spot. There we saw accused Avdhesh and I arrested and personally searched the accused vide memos already Ex.PW3/B and Ex.PW3/C respectively both bearing my signatures at point B respectively. I also recorded disclosure statement of accused vide memo Ex.PW3/D bearing my signature at point B. Accused took us to the spot and pointing out memo was prepared at the instance of accused same is already Ex.PW3/E bearing my signature at point B. Accused told us that he had used Silbatta to hit his father on head and other parts of the body. He got the same recovered from the empty SC No.726/2021 Page No. 13 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar plot just adjacent to his house and I seized the same vide seizure memo already Ex.PW3/F bearing my signature at point B. Accused was sent to DDU Hospital for medical examination, where his clothes, nail clippings, blood sample were seized by the doctor. I sealed the same along with sample seal of CMO DDU Hospital and seized the same vide seizure memo already Ex.PW3/G bearing my signature at point B. Postmortem of deceased was got conducted and doctor seized the clothes and blood on gauge piece. The said things were also seized by me along with two sample seals vide seizure memo already Ex.PW3/H bearing my signature at point B. Seal was handed over to SI Vipin Malik by me vide seal handed over memo already Ex.PW3/I bearing my signature at point B. Thereafter, I recorded supplementary statement statement of SI Vipin Malik. Accused was sent to Tihar Jail. The dead body of the deceased was handed over to complainant. Statement of the other witnesses under Section 161 Cr.P.C. were also recorded by me.
I collected the CDR of the mobile phones of complainant Ankit, his sister Rimjhim and his sister-in-law. Scaled site plan was prepared by draftsman at my instance. I took the subsequent opinion from concerned doctor that whether the injuries inflicted upon the body of deceased could have been caused with the help of Silbatta. The doctor opined in affirmative. The application in this regard is Ex.PW4/B bearing my signature at point A. Accused is present in the Court today (Correctly identified).
I can identified the case property, if shown to me.
Case property is already exhibited as Ex.P1 to P17.SC No.726/2021 Page No. 14 of 41
State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar The case property was sent to FSL. I prepared the charge-sheet, supplementary charge- sheet and filed the same before the Court."
PW-4 was duly cross examined by ld. counsel for the accused.
13. PW5 Ms. Seema Nain, Asstt. Director (Biology), RFSL, Chanakya Puri deposed as under:
"On 16.12.2020 I was posted at FSL, Rohini as Asstt. Director (Biology). On that day, my office received a letter No.1976/SHO/Uttam Nagar in connection with case FIR No.911/2020 PS Uttam Nagar. 12 sealed parcels were received in the office of Director, FSL. Same were marked to me for Biological and DNA Examination.
Seals on the parcels were intact and were tallied with the sample seals provided in the forwarding letter. I opened the said 12 sealed parcels and examined the exhibits. On biological examination, blood was detected on Exhibits 1, 2, 3, 4, 5, 6, 7a, 7b, 7c, 9, 11 and 12. The exhibits were subjected to DNA Isolation. DNA was isolated from the source of exhibits 1, 2, 3, 4, 5, 6, 7a, 7b, 7c, 9, 11 and 12. Globalfiler PCR amplification (STR) kit was used for each of the exhibits and data was analysed by Gene Mapper IDx Software.
On conclusion :
(i) DNA profile generated from the source of exhibit 11 (blood gauze of deceased) is matching with the DNA profile generated from the source of Exhibits 2 (gamchha from SOC), 3 (blanket from SOC), 4 (swab from SOC), 5 (plywood from SOC), 6 (silbatta from SOC), 7a (shirt of deceased), 7b & 7c (pant and underwear of SC No.726/2021 Page No. 15 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar deceased).
(ii) DNA profile generated from the source of exhibit 11 (blood gauze of deceased) is not matching with the DNA profile generated from the source of Exhibits 9 (nail clippings of accused).
After the examination, remnants of the exhibits were sealed with the seal of FSL S.Nn DELHI. I prepared my detailed report bearing no.SFSL DLH/10469/BIO/2259/20 BIO No.2360/2020 dated 25.03.2022. The same alongwith allelic data is Ex.PW5/A (Colly) (running into 5 pages) bearing my signature at point-A on each page."
PW-5 was duly cross examined by ld. counsel for the accused.
14. Thereafter, prosecution evidence was closed.
Statement under Section 313 CrPC and Defence Evidence
15. Statement under Section 313 CrPC of the accused was recorded wherein all the incriminating evidence which came on record was put to the accused which he denied and stated that he has been falsely implicated in the present case by the police.
16. Accused did not lead any evidence in his defence.
Arguments on behalf of parties
17. I have heard the arguments on behalf of Ld. Addl. PP for the State and ld. counsel for accused and perused the record carefully.
SC No.726/2021 Page No. 16 of 41State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar
18. Sh. Vijay Kumar, ld. counsel for accused had submitted that nothing incriminating has come on record in evidence which would connect the accused with the offence for which he has been charged. Both the material public witnesses i.e. PW-1 the complainant, who is son of deceased and PW-2, who is daughter of deceased, cited by the prosecution to prove its case have turned hostile and have not supported the case of prosecution. PW-1 and PW-2 did not state anything incriminating against the accused and did not state that the accused had committed the murder of their father and therefore, the accused be acquitted.
19. On the other hand, ld. Addl. PP for the State has submitted that the prosecution has duly proved its case beyond reasonable doubt and hence accused be convicted for the offence for which he has been charged.
Analyisis, Reasoning & Findings
20. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465 .
21. Accused Avdhesh has been charged for the offence under Section 302 IPC.
22. The present case is based on circumstantial evidence as SC No.726/2021 Page No. 17 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar there is no direct evidence to connect accused with crime. Before proceeding with the merits of the case, let us dwell on the law pertaining to the circumstantial evidence. In Sharad Birdhi Chand Sarda vs. State of Maharashtra 1984 AIR 1622 / 1985 SCR (1) 88, it was held that :
"3:3. Before a case against an accused vesting on circumstantial evidence can 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]
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
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; [163G]
3. The circumstances should be of a conclusive nature and tendency; [163G]
4. They should exclude every possible hypothesis except the one to be proved; and [163H]
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. [164B] These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti. [164B].
It was further held in aforesaid case :
3:4. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction. [164F]"
23. In Musheer Khan @ Badshah Khan v. State of Madhya Pradesh dated 28.01.2010, Hon'ble Supreme Court of India while discussing the nature of circumstantial evidence and the burden SC No.726/2021 Page No. 18 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar of proof of prosecution stated as under:-
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances."
24. The case of the prosecution as already discussed is based on the circumstantial evidence and the circumstances on which the prosecution has heavily relied in order to prove the guilt of the accused are as under :-
(i) Motive. (ii) Last seen theory and extra judicial confession.
(iii) Arrest of accused and recovery of sil-batta (weapon of offence) at the instance of accused.
(iv) Postmortem report of deceased. (v) Subsequent opinion taken on the weapon of offence i.e.
sil-batta and scientific evidence (DNA analysis on the weapon of offence and blood sample of deceased and remaining DNA analysis.
(i) Motive
25. Before coming to the merits of the case, it is important to discuss the law propounded in various judgments by the Higher Courts in respect of motive and its importance in cases of circumstantial evidence.
26. In the case Sheo Shankar Singh vs. State of Jharkhand (2011) 3 SCC 654, the Hon'ble Supreme Court had observed as under:
SC No.726/2021 Page No. 19 of 41State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar "13. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-
witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye- witnesses."
27. Further, in Prem Kumar vs. State of Bihar (1995) 3 SCC 228, the Hon'ble Supreme Court while relying upon the judgment in State of UP. v. Moti Ram & Ors. 1990 (4) SCC 389 has held as under:
"xxx xxx xxx Very often, a motive is alleged to indicate the high degree of probability, that the offence was committed by the person, who was prompted by the motive. In our opinion, in a case SC No.726/2021 Page No. 20 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if motive is proved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant, and important aspect,
(a) to highlight the intention of the accused and (b) the approach to be made in appreciating the totality of the circumstances, including the evidence disclosed in the case."
28. The prosecution has alleged that the accused had the motive to commit the offence. It has been alleged that the deceased had illicit relations with the wife of accused and deceased used to talk to her from the phone of his son Ankit and daughter Rimjhim, as recorded in the statements of Ankit and Rimjhim under Section 161 CrPC and that is the reason, before committing the offence, accused had left his wife and child to his native place 4-5 days prior to the incident. It is also alleged that accused used to fight with the deceased for money for buying liquor.
29. PW-1 Sh. Ankit and PW-2 Smt. Rimjhim are the real brother and sister of the accused. Deceased was the father of the accused. Prosecution has cited PW-1 Sh. Ankit and PW-2 Smt. Rimjhim as witnesses to prove motive for committing the offence by the accused.
30. PW-1 Sh. Ankit deposed that he was residing with his sister and his elder brother i.e. accused Avdhesh was residing alongwith his family and his father (deceased). Accused Avdhesh SC No.726/2021 Page No. 21 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar and his father used to have continuous quarrel on money. Accused was a habitual drinker and used to demand money from his father. He further deposed that on 13.11.2020 after doing his night duty, he came back to the house of his sister where he was residing. At around 12.00 -12.30 pm, accused came to his house. PW-2 asked him about his father. Accused informed that his father had gone for work. Accused again left the home and came back after some time and asked him about his father to which he stated that he did not know about his whereabouts. When PW-1 insisted to know about his father, then accused started crying and also told him that his phone and money has been stolen by one Vicky. PW-1 further deposed that thereafter he went to the house where his father was residing with the accused. Room was found locked. He broke the lock and found his father sleeping inside and also found that household articles were scattered and found that his father had been murdered. PW-1 did not state anything else.
31. PW-1 was cross examined by learned Addl. PP for the State. PW-1 Sh. Ankit admitted that accused used to quarrel with his father and demand money from his father. He further admitted that accused had dropped his family at the native place at Bihar about 4-5 days prior to the incident. He also admitted during his cross examination by ld. Addl. PP for the State that his father and wife of accused used to talk on mobile phone. Similarly, PW-2 Smt. Rimjhim, sister of accused/daughter of deceased only deposed that his father did not come for lunch on the date of incident. She asked her brother Ankit to go to the SC No.726/2021 Page No. 22 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar residence of his father. He went there and told her that her father had expired. She completely turned hostile and resiled from her statement. She was extensively cross examined by learned Addl. PP for the State wherein she admitted that accused was a habitual drinker but she pleaded ignorance in respect of the fact that he used to quarrel with his father on the pretext of demanding money for liquor. During her cross examination by learned counsel for the accused, she stated that her father was happily residing with the accused and there was no dispute between them. She also stated that accused had never quarreled with his father in her presence. PW-2 also pleaded ignorance in respect of the fact that accused had a suspicion on the character of his wife and father or that his father was having a illicit relationship with the wife of the accused. She only admitted that accused had dropped his family at the native place in Bihar. When the suggestion was put to her that since the accused was having doubt over the relationship of his father and his wife, therefore, he dropped his family at the native village in Bihar, she denied the said suggestion. The reading of testimony of PW-1 and PW-2 qua the motive part as discussed above shows that both of them have not been consistent in their testimonies regarding strained relationship of accused with the deceased. Further, they did not depose at all that deceased was in illicit relationship with wife of accused. No circumstance/events of facts have been proved by prosecution to prove that accused had the motive to commit murder of his father.
(ii) Last seen theory/extra judicial confession.
SC No.726/2021 Page No. 23 of 41State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar
32. The case of prosecution is further based on the last seen theory and the extra judicial confession allegedly made by the accused to his brother Ankit who has deposed as PW-1 in the present case. In the complaint Ex.PW1/A, the complainant Ankit stated that when his father did not come for lunch to his sister's house, he went to the house of his father where accused and his father were residing. When he opened the door, he found accused coming out. Accused was perplexed and told him that he had killed his father and he fled away from there.
33. Statement of complainant as above covers two legal principles. First is the last seen theory that the accused was alone found in the house wherein his father i.e. deceased Dilip Kumar Singh was found dead. Second principle is the extra judicial confession allegedly made by the accused to PW-1 Sh. Ankit while fleeing away from there.
34. It is an established principle of law that last seen theory is a very crucial piece of evidence which establishes an important link in the cases of circumstantial evidence in order to connect the accused with the crime. Similarly, extra judicial confession though may not be a strong piece of evidence, however, it can certainly give a probative value and could be an aid to join the links to prove a case of circumstantial evidence.
35. Before coming to the facts, let us dwell upon the law propounded on last seen theory and extra judicial confession. The principles of last seen theory was appreciated in Ganpat vs. SC No.726/2021 Page No. 24 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar State of Madhya Pradesh AIR 2017 SC 4839 wherein the Hon'ble Supreme Court has observed as under:
" 10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. xxx xxx"
36. The last seen theory is an important link in the chain of circumstances that points towards guilt of accused and the burden shifts on the accused to offer a reasonable explanation as to the cause of death of deceased.
37. The law on extra judicial confession has been explained in Gura Singh vs. State of Rajasthan 2001 (2) SCC 205, wherein the Hon'ble Apex Court observed as under:
"xxx xxx xxx It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the SC No.726/2021 Page No. 25 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1954 SCR 1098], this Court again in Maghar Singh v. State of Punjab [AIR 1975 SC 1320] held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. [AIR 1985 SC 1678] this Court cautioned that it is not open to the court trying the criminal case to start with presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. xxx xxx xxx"
38. Now coming to the deposition of PW-1, he is the only witness of the prosecution who could have established/proved the last seen theory put forth by the prosecution, however, on reading testimony of PW-1, it is found that he did not support this theory in any manner whatsoever. PW-1, while narrating the incident in his deposition, completely took a 'U' turn and instead of saying that he had gone to the house of his father when his father did not come for lunch at his sister's house, PW-1 stated that accused had come to the house of his sister and told him that he did not know the whereabouts of his father and when he insisted, he started crying.
39. Though as per the prosecution version, when PW-1 went to SC No.726/2021 Page No. 26 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar the house of his father, he found accused inside the house, however, as per his deposition, accused was at the house of his sister when PW-1 went to his father's house to see him. He did not even utter a word about the extra judicial confession made by accused to PW-1 regarding murdering his father by the accused in his (PW-1) deposition. During the cross examination conducted by learned Addl. PP for the State, PW-1 openly denied those facts and denied the suggestion that when he opened the gate of the house, all of a sudden accused came out, he was little bit perplexed and stated "Maine Papa Ko Maar Diya". In these circumstances, the second circumstance i.e. the last seen theory wherein the accused was allegedly found present at the house where the dead body of the deceased was found and the extra judicial confession made by the accused to PW-1 does not stand proved.
(iii) Arrest of accused and recovery of sil-batta (weapon of offence) at the instance of accused
40. As per deposition of PW-4 IO/Insp. Harpal Singh and PW-3 SI Vipin Malik, on 14.11.2020 at about 11.30 pm they received information from the secret informer that accused Avdhesh who had killed his father could be apprehended near Green Vatika, Nawada. PW-4 alongwith SI Vipin Malik and HC Gopal went to the said place where they saw the accused and arrested him. The arrest memo Ex.PW3/B is dated 15.11.2020 at about 12.30 am. The incident had taken place on 14.11.2020. This shows that accused was arrested on the same night when the incident took place. It is interesting to note that accused was residing at G-9, Om Vihar, Phase-V, Uttam Nagar, New Delhi SC No.726/2021 Page No. 27 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar and the accused has been shown to be arrested from a vacant plot near Green Vatika, 9 Acre Om Vihar, Phase-V i.e. the address mentioned in the colomn 'Place of Arrest' in the arrest memo. This indicates that the accused was arrested from the place which was in the vicinity of the house of the accused. It is very improbable that a person after committing murder would remain in the vicinity of his house and would be found in vacant plot where there would be no place to hide himself. As per the deposition of PW-3 and PW-4, at the instance of secret informer, they went there and accused was arrested. The testimony of these witnesses indicates as if accused was waiting for the police officials to come and arrest him. The testimony of these two witnesses in respect of the arrest of the accused does not appear to be convincing at all and therefore, his arrest is doubtful.
41. It is further noted from the testimony of PW-3 and PW-4 that after his arrest, the disclosure statement of accused was recorded wherein he disclosed that he has used sil-batta to hit his father on his head and other parts of his body. At the instance of accused, the weapon of offence i.e. sil-batta was recovered from an empty plot which was found containing blood stains.
42. It is settled law that only the portion of the disclosure statement which leads to the discovery of a fact is admissible under section 27 of Indian Evidence Act. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and Others Vs. Emperor (AIR 1947 PC 67 wherein it was held:
SC No.726/2021 Page No. 28 of 41State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar "Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
43. Perusal of seizure memo Ex.PW3/F shows that the sil-batta was found lying in an empty plot near the house of the accused where he was residing. The seizure memo is silent about anything used by the accused in order to hide the sil-batta or preventing it from viewing it by anybody else, meaning thereby that the weapon of offence has been recovered from an open place which was accessible to one and sundry. The law in this regard has been discussed in Heera Lal @ Heera vs. State Govt. of NCT of Delhi 2014 SCC OnLine Del 7126 wherein Hon'ble High Court of Delhi has held -
"15. As regards the recovery of iron rod at the instance of appellant it may be noted that the said recovery was from an open plot behind the school and the Shani mandir and thus place was accessible to one and all. Despite the opinion of the post-mortem doctor that the injury to the deceased was possible by the said iron rod the same cannot be held discriminately against Heera Lal in view of the recovery being from an open and accessible place.
16. In the decision reported as 1950 SCC 62: AIR 1954 SC 36 Trimbak v. State of M.P. the Supreme Court held that when the recovery of incriminating articles was made from an open and accessible place it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by SC No.726/2021 Page No. 29 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring the knowledge about its whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in in possession of these articles. This position was reiterated in the decision reported as (1983) 2 SCC 251 Kora Ghasi v. State of Orissa.
Clarifying the legal position further in the decision reported as AIR 1999 SC 1293 State of Himachal Pradesh v. Jeet Singh the Supreme Court noted:
26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances.
Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
17. It has thus to be seen whether the recovery, if from an open and accessible place is lying concealed and could be recovered only after the accused disinterred the same from the said hidden stage. In the present case there is no such evidence. xxxxxxxxxx"
SC No.726/2021 Page No. 30 of 41State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar
44. Applying the ratio laid down above, the weapon of offence in the present case was found from an open place. It is not at all the case of prosecution that accused had hidden the weapon somewhere within this open place so as to make it inaccessible to the others. The place of recovery should be such which would have been in the exclusive knowledge of the accused. It has already been held that the arrest of the accused was made under doubtful circumstance. Furthermore, seizure memo Ex.PW3/F shows that it bears the signatures of SI Vipin Malik only as a witness and no independent witness was joined while effecting recovery. There is no whisper in the deposition of IO/PW4 Insp. Harpal Singh or that PW-3 SI Vipin Malik that they made efforts to join independent witnesses. Generally, the non-joining of independent witnesses while effecting recovery may not be that significant, but in peculiar facts of the case when the arrest of the accused has been made under doubtful circumstances, the alleged recovery of weapon of offence i.e. sil-batta at the instance of accused does not stand proved and cannot be said to be admissible under Section 27 of Indian Evidence Act.
(iv) Postmortem report of deceased.
45. The postmortem on the body of the deceased Dilip Kumar Singh was conducted on 15.11.2020. The postmortem report Ex.A6 was admitted by the accused under Section 294 CrPC. As per the postmortem report Ex.A-6, during external examination, following external injuries were found on the body of deceased.
"External Injuries
1. Lacerated wound of size of 1cm x 0.5cm x SC No.726/2021 Page No. 31 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar bone deep present over middle front of forehead.
2. Contusion, reddish in colour of size 2.5cm x 1cm present over left side of forehead.
3. Contusion, reddish in colour of size 3cm x 1.5cm present over right side of forehead."
46. Further, internal examination of the dead body of deceased was conducted and following injuries were found:
"Internal Examination Head Scalp: Effusion of blood present bilateral fronto parietal region of head.
Skull / Base of Skull: Fracture of left parietal bone. Brain, Meanings & Vessels: Subdural haemorrhage bilateral present over fronto parietal region and subarachnoid haemorrhage present over all over the brain.
Neck
1. Hyoid Bone/Thyroid Cartilage/Cricoid Cartilage, Tracheal Rings & Mucosa, Any Foreign Body in Trachea: NAD.
Chest (Thorax) ST (THORAX)
1. Ribs and Chest Wall Fracture of 4,5,6 and 7 ribs of left side anteriorly along with mid clavicular line.
2. Oesophagus : NAD.
3. Pleural Cavities present : About 50ml of clotted blood mixed fluid present
4. Lungs : congested.
5. Heart and pericardial sac/large blood vessels:
NAD.
Abdomen
1. Abdominal wall : NAD.
2. Peritoneal Cavity : NAD .
3. Stomach:
a. Contents : About 200ml of semi digestive food SC No.726/2021 Page No. 32 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar (dal-rice) b. Mucosa : NAD.
4. Small intestine : Contains fluid and gases, Walls-NAD.
5. Large intestine, vermiform appendix: Contains faecal matter and gases, Walls-NAD.
6. Liver, gall bladder, biliary passages : congested.
7. Spleen : congested.
8. Kidney, renal pelvis, and urethra : congested.
Genital Organ Urinary Bladder : Empty Rectum : Empty Genital organs : NAD Spinal Column : Intact."
47. After postmortem examination, the opinion on the cause of death was given which is as under :
"The cause of death: The cause of death is due to cranio-cerebral damage consequent upon blunt force impact to the head. Injury no 2 is sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature, fresh in duration could be caused due to blunt force impact."
48. The postmortem report Ex.A6 clearly shows that the death of deceased Dilip Kumar Singh was homicidal.
49. After conducting the postmortem on the body of the deceased, following exhibits were preserved and were sealed with the seal of 'PM DDUH' and were handed over to the IO which was as under :
"(1) Blood on Gauze piece (2) cloths."SC No.726/2021 Page No. 33 of 41
State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar
50. In this respect, seizure memo Ex.PW3/H was prepared by the IO/Insp. Harpal Singh on 15.11.2020. This fact is also not disputed.
(v) Subsequent opinion taken on the weapon of offence i.e. sil- batta and scientific evidence (DNA analysis on the weapon of offence and blood sample of deceased and remaining DNA analysis.
51. The subsequent opinion on the nature of injuries was admitted by the accused under Section 294 CrPC and was exhibited as Ex.A9.
52. Subsequent opinion Ex.A9 given by doctor on weapon of offence is as under:
"The produced parcel containing weapon of offence (intact 6 seals) opened and one silbatta taken out. On examination of the same, it is observed that it having weight of 6 Kg 916 grams, the total length of 36 cm and breadth 24 cm and thickness is 4 cm. There is blood like staining present on the upper surface of silbatta and injuries mentioned in post mortem report No.1861/2020 could be caused by the produced weapon of offence i.e. silbatta."
53. PW-5 Ms. Seema Nain, Asstt. Director (Biology), RFSL, Chanakya Puri, New Delhi has proved the FSL report Ex.PW5/A which reads as under:-
"DESCRIPTION OF PARCELS & CONDITION OF SEALS SAMPLE SEAL & SEALS INTACT AS PER F.A.'S LETTER Sealed Cloth parcel : 07 Sealed Cloth Tape :03 Sealed Paper Envelope : 01 Sealed Plastic dibbi : 01 Total : 12(Twelve) SC No.726/2021 Page No. 34 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "HS" containing exhibit "I'stated to be lifted from the scene of crime.
Exhibit "1" : One dirty, damp, foul smelling Chunni having greenish like fungal growth Parcel '2' : One sealed cloth parcel sealed with the seal of "HS" containing exhibit "2" stated to be lifted from the scene of crime.
Exhibit '2' : One dirty Gamchha having brownish stains.
Parcel '3' : One sealed cloth parcel sealed with the seal of "HS" containing exhibit '3', stated to be lifted from the scene of crime.
Exhibit '3' : One dirty blanket having brownish stains Parcel '4' : One sealed plastic dibbi sealed with the seal of "HS" containing exhibit '4' stated to be lifted from the scene of crime.
Exhibit '4' :One cotton wool swab having brownish stain described as 'Blood on cotton'.
Parcel '5' : One sealed cloth parcel sealed with the seal of "HS" containing exhibit '5' stated to be lifted from the scene of crime.
Exhibit '5' : One piece of plywood having brownish stains.
Parcel '6' : One sealed cloth parcel sealed with the seal of "PM DDUH" containing exhibit '6' stated to be recovered on the instance of accused SC No.726/2021 Page No. 35 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar 'Avdhesh Kumar'.
Exhibit '6' : One piece of stone having brownish stains described as "Silbatta".
Parcel '7' : One sealed cloth parcel sealed with the seal of "PM DDUH" containing exhibits "7a', '7b' & '7c", kept in polythene stated to be of deceased Dalip Kumar.
Exhibit '7a' : One dirty Shirt.
Exhibit '7b' : One dirty Pant/trouser.
Exhibit '7c' : One dirty Underwear.
Parcel '8' : One sealed cloth tape sealed with the seal of "CMO DDU HOSPITAL" containing exhibits '8a', '8b', '8c', '8d', & '8e' stated to be of Accused Avdhesh Kumar Exhibit '8a" : One dirty Shirt.
Exhibit '8b" : One dirty T-shirt.
Exhibit '8c' : One dirty Nikkar Exhibit '8d' : : One dirty Jeans pant.
Exhibit '8e' : One dirty Underwear.
Parcel '9' : One sealed cloth tape sealed with the seal of "CMO DDU HOSPITAL" containing exhibits '9', kept in plastic dibbi stated to be Accused Avdhesh Kumar.
Exhibit '9' : Few dirty nail clippings described as 'Nail clipping'.
Parcel '10' : One sealed cloth parcel sealed with the seal of "HS" containing exhibit "10" stated to be lifted from the scene of crime.
Exhibit '10' : One piece of wooden board described as 'Control plywood".
Parcel '11' : One sealed paper envelope sealed with the seal of "PM DDUH", containing exhibit SC No.726/2021 Page No. 36 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar '11' stated to be of deceased Dalip Kumar.
Exhibit '11" : One gauze cloth piece having brownish stains described as 'Blood on gauze piece".
Parcel '12' : One sealed cloth tape sealed with the seal of "CMO DDU HOSPITAL", containing exhibit '12' stated to be of accused Avdhesh Kumar.
Exhibit '12' : One dirty, damp, foul smelling gauze cloth piece described as "Blood sample".
RESULT OF BIOLOGICAL EXAMINATION Conclusion :- DNA profiling (STR analysis) performed on the source of exhibits '2', '3', '4', '5', '6', '7a', '7b', '7', '9' and '11' is sufficient to conclude that
1. DNA profile generated from the source of exhibit 11' (Blood gauze of deceased) is matching with DNA profile generated from the source of exhibits '2'(Gamchha from SOC), 3'(Blanket from SOC), '4'(Swab from SOC), '5'(Ply wood from SOC), '6' (Sil batta from SOC), '7a' (Shirt of deceased) and '7b' & '7c' (Pant & Underwear of deceased).
2. DNA profile generated from the source of exhibit '11' (Blood gauze of deceased) is not matching with DNA profile generated from the source of exhibits '9' (Nail clipping of accused)."
54. At the first blush, opinion taken on weapon of offence and the FSL reports suggest that the prosecution has duly proved the crime but the inquisitive analysis of the same would indicate that SC No.726/2021 Page No. 37 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar prosecution has not able to prove this circumstance irrefutably.
55. PW4 IO/Insp. Harpal had deposed that weapon of offence i.e. sil-batta was recovered at the instance of accused on 15.11.2020 and seizure memo Ex.PW3/F was prepared which was duly sealed with the seal of 'HS'.
56. It was only on 14.12.2020 that this weapon of offence i.e. sil-batta was sent to Forensic Department of DDU Hospital for getting subsequent opinion. The subsequent opinion was given which has been exhibited as Ex.A9 by Dr. V.K. Ranga, Specialist, Department of Forensic Medicine, DDU Hospital as it was admitted by accused during admission/denial of the documents under Section 294 Cr.PC. It is worthwhile to note that Dr. V.K. Ranga is the same doctor, who had conducted the postmortem on the body of the deceased and had preserved the specimens i.e. blood sample of the deceased in gauze piece and the clothes of the deceased, which were handed over to IO.
57. The seizure memo dated 15.11.2020 of the sil-batta Ex.PW3/F shows that sil-batta contained blood stains. It was duly sealed with the seal of IO i.e. HS. This sealed weapon of offence was allowed to remain in malkhana for about a month from the date of its seizure. No reason for the said delay has been given/ explained in the testimony of IO/PW-4 Insp. Harpal Singh. The blood stains found on the weapon of offence is a very crucial piece of evidence which required delicate handling and prompt action. Even after one month, instead of sending the sil-batta to SC No.726/2021 Page No. 38 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar FSL, it was sent to the doctor of Forensic Medicine of DDU Hospital first for procuring a subsequent opinion which exercise could have been undertaken after receiving the report from FSL. The seal of the said sil-batta was broken as per the contents of subsequent opinion paper Ex.A9 and it was examined by said doctor. Meaning thereby, the said sil-batta would have been touched by the doctor and would have been taken in his hand for examination purposes. The alleged weapon was containing the blood stains as recorded in Ex.PW3/H. The possibility of stains getting destroyed while handing/examining the weapon of offence cannot be ruled out. Therefore, possibility of tampering with the said weapon of offence cannot be ruled out at that stage as it was allowed to be opened before sending it to FSL. It was only after taking the subsequent opinion on 14.12.2020, that on 16.12.2020, it (weapon in unsealed condition) was sent to FSL with other exhibits lying in malkhana. Meaning thereby, that the weapon of offence was not sent in intact condition in which it was recovered, to the FSL. The very essential requirement of anything getting examined by way of scientific examination is that it should be sent immediately without any breathing period in order to rule out the possibility of any interpolation. Had there been any explanation for such conduct, it ought to have been mentioned in the deposition of IO. There is no such explanation.
58. Hence, in backdrop of all findings given above, it is opined that having doubted the recovery of sil-batta at the instance of accused, the circumstance that the sil-batta carried blood of same group as that of deceased is rendered meaningless because there SC No.726/2021 Page No. 39 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar is no admissible evidence to connect the sil-batta (weapon of offence) with the accused.
59. Apart from the above said fact, it is also pertinent to note here that during the investigation, the nail clippings of the accused were also seized and were sent to FSL for the purposes of comparison. Ex.'9' in the description of articles contained in parcel as mentioned in the FSL Report Ex.PW5/A proved by PW-5 Dr. Seema Nain finds mention of few dirty nail clippings 'nail clippings'. These nail clippings were compared and as per the FSL result, the DNA profile generated from blood gauze of deceased did not match with the DNA profile generated from the nail clippings of the accused.
60. To sum up, to my mind, the first rule is that the facts alleged on the basis of legal inference from circumstantial evidence must be clearly proved beyond reasonable doubt which is not the case herein.
Conclusion
61. In view of the above discussion, the prosecution has failed to prove any of the circumstances i.e. the motive to commit the offence by accused; last seen theory/extra judicial confession; arrest of accused and recovery of sil-batta i.e. the weapon of offence at the instance of accused as well as the scientific evidence to connect the accused with the crime, on which the prosecution has relied to prove the guilt of the accused. The prosecution has failed to create any network from which there SC No.726/2021 Page No. 40 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar should not have been any escape for the accused. The complete chain in order to connect the accused with the offence charged could not be established by the prosecution and hence, accused is acquitted for the charge framed for the offence of murder under Section 302 IPC.
62. Hence, accused Avdhesh stands acquitted of the charges framed under Section 302 IPC in the present FIR No.911/2020 PS, Uttam Nagar.
Digitally signed Announced in open court VANDANA by VANDANA JAIN on 29.04.2025 JAIN Date: 2025.04.29 16:00:07 +0530 (Vandana Jain)
ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/29.04.2025 Note: This judgment contains forty-one (41) pages and having my signature on each page. Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2025.04.29 16:00:12 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/29.04.2025 SC No.726/2021 Page No. 41 of 41 State vs. Avdhesh FIR No.911/2020, PS Uttam Nagar