Delhi District Court
State vs Pradeep on 7 May, 2025
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
(FAST TRACK COURT), SOUTH-WEST DISTRICT,
DWARKA COURT, NEW DELHI
Presided by: Mr. Sharad Gupta
Sessions Case No. 537/2017
CNR No. DLSW010104242017
FIR No. : 152/2017
Police Station : Dwarka North
Under Section : 302/201/34 IPC
In the matter of :
State
versus
1. Pradeep S/o Sh. Gopi,
R/o H. No. 41, Police Colony,
Chanchal Park, Bakkarwala,
New Delhi.
2. Deepak S/o Sh. Gopi,
R/o H. No. 41, Police Colony,
Chanchal Park, Bakkarwala,
New Delhi.
Date of institution : 16.08.2017
Date of conclusion of arguments : 15.04.2025
Date of judgment : 07.05.2025
Decision : Accused Pradeep and
Deepak are convicted for
the offence punishable
under Section 302/34.
Accused Pradeep and
Deepak are acquitted for
SHARAD the offence punishable
GUPTA U/s 201/34 IPC.
Digitally signed State Vs. Pradeep and another
by SHARAD FIR No. 152/2017 PS Dwarka North Page 1 of 86
GUPTA
Date: 2025.05.07
17:00:07 +0530
JUDGMENT
1. The accused persons, namely, Pradeep and Deepak have been sent up to face trial in the instant case FIR no. 152/2017 PS Dwarka North on the allegations that in the intervening night of 24.05.2017 and 25.05.2017, near Tree no. 259, towards drain at footpath near Odisha Bhawan, Sector-16 B, Dwarka, New Delhi, they both in furtherance of their common intention committed the murder of one Marshal S/o Late Sh. Raj Singh and after committing the murder of deceased Marshal, they both in furtherance of their common intention got the clothes of accused Pradeep washed with an intent to cause disappearance of evidence of commission of murder.
CASE OF PROSECUTION
2. The case of the prosecution as gleaned from the charge-sheet is that on 25th May, 2017, on receipt of DD no. 10 A, from HC Pardeep, regarding an unidentified dead body lying near Orissa Sadan, Sector-16B, Dwarka, on the footpath beside the Ganda Nala (drain), SI Rajender reached at the spot at the spot, where HC Pardeep was found present and the dead body of a male, aged about 23-24 years having fair complexion was also found at the spot near tree No. 259. The deceased was about 165 cm tall, having slim built. Blood was found coming out from the mouth and nose of the deceased, and injury marks were also present on the neck. The deceased was wearing a red & blue SHARAD checkered full-sleeve shirt of label Jack & Player, a grey round- GUPTA Digitally signed by SHARAD State Vs. Pradeep and another GUPTA FIR No. 152/2017 PS Dwarka North Page 2 of 86 Date: 2025.05.07 17:00:23 +0530 neck vest inside the shirt, a blue jeans with bloodstains on the front side, a brown belt and green slippers (one of which was lying nearby. The deceased was having the name "Manju" tattooed on his right forearm alongwith another partially removed tattoo. In his right hand, the deceased was wearing a steel bracelet, sacred thread and a black rubber band with "Tiesto" written in white and in his left hand, the deceased was wearing a steel bracelet. On checking, ₹10 note, ₹2 coin, and five pouches of "Pass-Pass" gutkha were found in his right pocket. No visible scuffle marks were found in the surroundings. In the meantime, the SHO and Inspector Nirmal Sharma, the then ATO also arrived at the spot. A Crime Team was called to inspect the spot. Crime team reached at the spot and took photographs of the spot and and prepared its report. SI Rajender Kumar prepared rukka and got the present FIR registered.
3. After registration of the FIR, further investigation was assigned to Inspector Nirmal Sharma, who prepared the site plan of the place of recovery of the dead body, seized the blood- stained soil, earth control and the pair of slippers from the spot. During further investigation, efforts were made for identification of the dead body. On 26.05.2017, deceased was identified by his brother Arjun. Missing report regarding missing of deceased Marshal had already been lodged vide DD no. 36 A at PS Ranhola. IO recorded the statement of Mr. Arjun, brother of deceased who raised suspicion on accused Pradeep for the SHARAD murder of his brother. Accordingly, accused Pradeep was GUPTA apprehended and interrogated. In the meantime, post mortem on Digitally signed by SHARAD State Vs. Pradeep and another GUPTA FIR No. 152/2017 PS Dwarka North Page 3 of 86 Date: 2025.05.07 17:00:31 +0530 the dead body of deceased Marshal was also got conducted. CDRs of accused Pradeep, his wife Smt. Pooja and brother of deceased, namely, Mr. Arjun were collected and examined. The CDR analysis confirmed the presence of accused Pradeep at the scene of crime and upon sustained interrogation, accused Pradeep made disclosure statement regarding the commission of offence. Pursuant to his disclosure statement accused Pradeep pointed out the scene of crime and also got recovered his washed clothes which he was wearing at the time of incident. Upon further interrogation, accused Pradeep made a subsequent disclosure statement and pursuant thereto, he also got recovered the belt used in the commission of offence from his house. Co-accused Deepak was also apprehended and interrogated in this case and he also made disclosure statement regarding the commission of the offence. Pursuant to his disclosure statement, accused Deepak got recovered the Swift Car having registration no. DL-9CAU- 1246, used in the crime, from Nangloi Railway Station. The said car was having bloodstains. During the search of the Swift Car, a challan dated 24.05.2017 (at 10.45 pm) by Gurgaon Traffic Staff was also recovered. Upon interrogation, accused Deepak also made a subsequent disclosure statement and pursuant thereto, he got recovered his clothes which he was wearing at the time of commission of offence. Subsequent opinion regarding the belt used in commission of offence was obtained from the Autopsy Surgeon. The exhibits of the case were sent to the FSL for expert SHARAD opinion. Statement of PW Mr. Ravi U/s 164 CrPC was got GUPTA recorded.
Digitally signed by SHARAD GUPTA Date: 2025.05.0717:00:42 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 4 of 86
4. After completion of the investigation, charge-sheet was filed in the court. Subsequently, by way of supplementary charge-sheets, FSL results were filed in the court.
COURT PROCEEDINGS
5. In light of the police report and the documents filed alongwith the same, cognizance was taken vide order dated 16.08.2017 passed by the learned Metropolitan Magistrate.
6. After complying with the provisions of Section 207 of Cr.PC, the learned Metropolitan Magistrate, vide order dated 22.08.2017, committed the case for trial to the Court of Sessions.
7. Vide order dated 11.01.2018, accused Pradeep and Deepak were charged for commission of offences punishable U/s 302/34 IPC and Section 201/34 IPC.
8. The case was received by way of transfer by this Court on 19.09.2022.
PROSECUTION EVIDENCE
9. To prove the charge against the accused, the prosecution has examined as many as twenty seven (27) witnesses.
10. PW-1 Mr. Ravi Kumar, as per the case of prosecution, is witness of last seen evidence. He has, however, not supported the case of prosecution in this regard. SHARAD GUPTA 11. PW-2 Mr. Jai Bhagwan @ Bittu, as per the case of Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:00:49 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 5 of 86 prosecution is a witness of circumstances of the night of incident. He has, however, also not supported the case of prosecution in this regard.
12. PW-3 Smt. Pooja is the wife of accused Pradeep. She has been examined by the prosecution to establish the motive of offence and the circumstances subsequent to the incident viz. accused Pradeep coming home on the night of incident with blood stains on his hand and clothes and the recovery of waist belt (weapon of offence) at the instance of accused Pradeep. She has, however, partially supported the case of prosecution and her testimony will be appreciated in detail in the later part of this judgment.
13. PW-4 Sh. Arjun is the brother of deceased Marshal. He is a witness to the motive of murder and the identification of the dead body of the deceased. His testimony will be appreciated in detail in the later part of this judgment.
14. PW-5 SI Richhpal and PW-6 Ct. Kapil are the police officials of Traffic Circle Gurgaon who had seen deceased Marshal in injured condition in the company of accused Pradeep and Deepak in the Swift Car being driven by accused Deepak, at the time when accused Deepak was challaned for driving under the influence of liquor, on the night of incident. Their testimonies will also be appreciated in detail in the later part of this judgment.
SHARAD 15. PW-7 ASI Sunita is the Duty Officer who had GUPTA registered the FIR of this case and also gave certificate U/s 65 B Digitally signed by SHARAD State Vs. Pradeep and another GUPTA FIR No. 152/2017 PS Dwarka North Page 6 of 86 Date: 2025.05.07 17:00:58 +0530 of the Indian Evidence Act.
16. PW-8 ASI Balwant Singh is the photographer of the crime team who had clicked the photographs of the spot.
17. PW-9 Smt. Paramjeet is the mother of deceased Marshal, who had lodged report regarding missing of her son Marshal.
18. PW-10 ASI Sunder Lal was the Duty Officer - cum- DD Writer on the night intervening 24/25.05.2017, who had recorded DD no. 10 A, which was handed over to SI Rajender.
19. PW-11 HC Pradeep had first of all noticed the dead body of the deceased and intimated the police station in this regard. He also joined the investigation after SI Rajender reached at the spot and also took the rukka to the PS for getting the present FIR registered.
20. PW-12 Dr. Neeraj Kumar Garg had prepared the MLC of deceased Marshal.
21. PW-13 Dr. Jatin Bodwal is the Specialist who had conducted post mortem on the dead body of the deceased and also gave his subsequent opinion regarding the weapon of offence i.e. Waist Belt.
22. PW-14 HC Yogesh had deposited the sealed parcel SHARAD of the weapon of offence with the concerned autopsy surgeon for GUPTA subsequent opinion and also brought it back after the examination by the concerned doctor. He also deposited the Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:01:09 +0530 FIR No. 152/2017 PS Dwarka North Page 7 of 86 exhibits of this case to the FSL Rohini for expert opinion.
23. PW-15 ASI Rajbala had registered the missing report of deceased Marshal vide GD no. 36 A, which was marked to HC Balwan.
24. PW-16 HC Rajeev is the concerned MHC(M) with whom the case property of the present case was deposited on different dates.
25. PW-17 HC Ramesh is the draftsman who had prepared the scaled site plan of the spot.
26. PW-18 Mr. Pawan Singh is the Nodal Officer who proved on record the CAF, CDR and Cell ID Charts of mobile numbers 9899814316 (accused Pradeep), 9212867268 (PW-4 Arjun), 9891319511 (accused Deepak) and 8744902287 (PW-2 Mr. Jai Bhagwan) to the IO and also gave certificate U/s 65 B Indian Evidence Act in support of the same.
27. PW-19 Mr. Prakash Saxeana is the Nodal Officer who proved on record the CAF, CDR and Cell ID Charts of mobile number 8076328113 (PW-1 Mr. Ravi Kumar) to the IO and also gave certificate U/s 65 B Indian Evidence Act in support of the same.
28. PW-20 Mr. Ajay Kumar Saxena is the Scientific Officer who had examined the exhibits of this case i.e. mobile SHARAD phone make YU of PW-4 Arjun and gave his report. GUPTA 29. PW-21 Mr. Amit Rawat is the Asstt. Director Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:01:18 +0530 FIR No. 152/2017 PS Dwarka North Page 8 of 86 Chemistry who examined the exhibits of this case i.e. viscera of deceased and gave his report as per which ethyl alcohol was found present in the viscera of the deceased.
30. PW-22 Mr. Surender Kumar is the Nodal Officer who proved on record the CAF, CDR and Cell ID Charts of mobile numbers 8130903041 and 9205450991 to the IO and also gave certificate U/s 65 B Indian Evidence Act in support of the same.
31. PW-23 ASI Balwan Singh is police official to whom the missing report of deceased Marshal was marked.
32. PW-24 SI Rajender Kumar is the initial IO of this case to whom the DD no. 10 A regarding the dead body was marked and who had got the present FIR registered. He also remained part of the investigation of this case.
33. PW-25 Inspector Nirmal Sharma is the IO of the case. She has been examined to prove the investigation conducted by her.
34. PW-26 Mr. Suresh Kumar Singla is the Retired Principal Scientific Officer, CFSL CBI CGO Complex, who had examined the exhibits of this case and gave his report. As per his report, genetic material of the deceased was found on the gauze cloth pieces containing exhibits from the car registered in the name of accused Pradeep and belt of accused Pradeep. SHARAD GUPTA 35. PW-27 SI Sachin Kumar was the IO of DD no. 5 A PS Vasant Vihar, regarding the quarrel between PW-Ms. Pooja Digitally signed by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 9 of 86 17:01:26 +0530 and her brother Suraj.
DEFENCE OF THE ACCUSED
36. In their statements recorded under Section 313 Cr.PC, accused Pradeep as well as Deepak claimed that Arjun, brother of deceased Marshal was having illegal affair with wife of accused Pradeep, namely, Ms. Pooja. They added that deceased Marshal was a social person and he had several times advised his younger brother Arjun (PW-4) not to have illegal realtionship with a married woman but Arjun did not listen. They further stated that Arjun intended to eliminate accused Pradeep from his way so that he may keep his illegal relations with his wife Pooja and he (Arjun) also intended to eleminate his own brother Marshal who used to advise him not to continue his illicit relationship with Pooja. It is claimed by accused Pradeep and Deepak that PW-4 Arjun has killed two birds with one stone by eliminating his own brother Marshal and by implicating accused Pradeep and Deepak in this case. They claimed that Deepak was implicated in this case so that there was no one to defend accused Pradeep. The accused persons claimed that as per their information, Pooja wife of accused Pradeep and his children were still residing with Arjun. They also claimed that the FSL result was manipulated by the police officials in connivance with Arjun.
37. Furthermore, in his statement recorded U/s 313 SHARAD GUPTA Cr.P.C., accused Pradeep showed ignorance towards various facts viz. the proceedings conducted by the police at the time of Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:01:36 +0530 FIR No. 152/2017 PS Dwarka North Page 10 of 86 recovery of the dead body of deceased Marshal and post mortem proceedings; the post mortem findings; seizure of exhibits during by the doctor during the post mortem proceedings; identification of the dead body of deceased Marshal by his brother Arjun; recording of statement of PW Arjun, handing over of the dead body to PW-4 Arjun; production of Samsung Mobile phone having Airtel SIM by PW Pooja to the police; recording of statement U/s 164 Cr.P.C. of PW Ravi; making of scaled site plan; deposit of exhibits at the FSL; collection of FSL report(s) by the IO; and inquiry/investigation in DD no. 5 A regarding quarrel between PW Pooja and her brother.
38. In his statement recorded U/s 313 Cr.P.C. accused Pradeep denied various facts viz. the factum of missing report of deceased Marshal; the factum of Pooja going to her maternal home after she was beaten by accused Pradeep; factum of Arjun receiving a call in this regard from Pooja; the factum of compromise between Pooja and accused Pradeep; factum of Pooja returning to her matrimonial home from the house of sister of accused Arjun on the pretext of missing her mother; the factum of threatening PW Arjun by accused Pradeep; factum of Arjun going to Patna and on his way back receiving a call from Pooja on his mobile phone number 9212867268; factum of Pooja informing Arjun that when accused Pradeep returned home on that day, he was having blood on his hands and clothes SHARAD and that on this PW-4 Arjun told her that since Pradeep was an GUPTA alcoholic, he must have consumed liquor and had fight with Digitally signed someone; the factum of PW-4 receiving a call from his mother by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:01:49 +0530 FIR No. 152/2017 PS Dwarka North Page 11 of 86 regarding missing of his brother Marshal; factum of PW-4 Arjun handing over his mobile phone make YUFORIA alongwith a Vodaphone SIM and a Pen Drive to the police; the contents of the Pen Drive and identification of the voices in the Audio Clippings in the Pen Drive by PW-4; identification of slippers of deceased Marshal by PW-4 Arjun; factum of altercation between accused Pradeep and Arjun while PW-Arjun was taking Pooja for shopping in an Auto, the factum of threatening and slapping PW Arjun by accused Pradeep during the year 2022; the post mortem opinion; the factum of making a disclosure statement by accused Pradeep; the factum of pointing out of the spot by accused Pradeep; the factum of recovery of clothes allegedly worn by accused Pradeep at the time of incident at the instance of accused Pradeep; factum of making a supplementary disclosure statement by accused Pradeep and recovery of weapon of offence i.e. waist belt at the instance of accused Pradeep; factum of accused Deepak making a disclosure statement; the factum of accused Deepak pointing out the spot; factum of recovery of Swift Car bearing no. DL9CAU1246 from gali no. 9, near Mother Dairy Booth Nangloi at the instance of accused Deepak; factum of discovery of blood stains in the said Swift Car; factum of preparation of site plan by the IO; factum of recovery of clothes of accused Deepak at his instance; factum of examination of the Swift Car by the FSL team; factum of seizure of mobile phones of Arjun and Pooja SHARAD and the pen drive by the IO; factum of collection of CDRs by GUPTA the IO; factum of obtaining subsequent opinion by the IO;
Digitally signed by SHARAD GUPTAState Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 12 of 86 17:02:00 +0530 factum of examination of the exhibits at FSL and the FSL results; the CDRs; and the factum of deposit of various exhibits in malkhana.
39. It is, however, important to note here that in his statement recorded U/s 313 Cr.P.C., accused Pradeep specifically admitted various facts/allegations viz. his apprehension and interrogation; their friendship with deceased Marshal; friendship and love affair between Pooja and Arjun; the factum of accused Pradeep apprehending his wife Pooja while taking to Arjun over phone; factum of Pooja living with a lady Kavita for two days after that incident and thereafter going to her maternal home; factum of bringing Pooja back by accused Pradeep after about 15-20 days; factum of Pooja and Arjun going to the house of sister of PW-4 Arjun at village Dullehra, Jhajjar, Haryana where they remained for about 12-13 days; factum of Arjun dropping Pooja at her paternal home where she remained for 6-7 months during which period she used to talk to accused Pradeep and their son was also born during that period; the factum of Pooja returning back to her matrimonial home after a quarrel with her brother; Pooja calling Arjun from the mobile phone of her father in law; the factum of Arjun arranging a mobile phone and SIM card (9205450991) for Pooja on which they started talking secretly; the factum of having been challaned by Gurgaon Police; fact that when accused Pradeep SHARAD had gone with the police in the evening of 26.05.2017, the Swift GUPTA Car was at home; factum of recovery of challan in the personal Digitally signed search of accused Deepak; factum of PW-5 SI Richpal and PW- by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:02:14 +0530 FIR No. 152/2017 PS Dwarka North Page 13 of 86 6 Ct. Kapil stopping the car of accused Pradeep and Deepak, which was being driven by accused Deepak at that time and issuance of challan for drunken driving; the fact that deceased Marshal was sitting on the back seat of the Swift Car at the time of issuance of challan by PW-5 SI Richpal and PW-6 Ct. Deepak; the fact that on being inquired from accused Deepak about Marshal, he told that 'isne daaru pi rakhi hai pad gaya tha'; fact that the driving license of accused Deepak was impounded by PW-5; and the fact that PW-5 and PW-6 identified the third person sitting in the car of accused Pradeep and Deepak was deceased Marshal.
40. More or less similarly, in his statement recorded U/s 313 Cr.P.C., accused Deepak denied recovery of dead body by PW-11 HC Pradeep and the proceedings conducted thereafter at the spot; lifting of exhibits from the spot; arrival of the IO at the spot; proceedings conducted by the police for identification of the dead body of deceased; preparation of site plan; identification of dead body of deceased and his slippers by his brother Arjun; the fact that after Pradeep apprehended PW-3 Pooja talking to Arjun, she had gone to her maternal home after being beaten by accused Pradeep; factum of compromise between Pooja and Pradeep and accused Pradeep bringing her back home, factum of fight between accused Pooja and her brother consequent to which she came back home; factum of SHARAD accused Pradeep threatening Arjun over phone as well as in GUPTA person on multiple occassions; PW-4 Arjun going to Patna; Digitally signed factum of Pooja informing PW-4 Arjun that when Pradeep by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:02:24 +0530 FIR No. 152/2017 PS Dwarka North Page 14 of 86 returned home, he was having blood stains on his hands and clothes; PW-Arjun receiving call from his mother regarding missing of his brother Marshal; handing over of the Yuforia mobile phone having a Vodafone SIM and a pen drive by PW Arjun to police; contents of the pen drive; conversation between Arjun and Pooja as contained in the pen drive; identification of slippers of deceased by PW Arjun; accused Pradeep having confessed the crime; pointing out of the spot by accused Pradeep; recovery of clothes worn at the time of incident at the instance of accused Pradeep; subsequent disclosure statement by accused Pradeep; identification of the route on which Marshal was taken by accused Pradeep; factum of quarrel between Pooja and her brother consequent whereto she resumed the company of accused Pradeep; factum of Pradeep calling Arjun as to what had happened on which Arjun informed him that police was suspecting him for the murder of his brother; factum of Swift Car being at the house of Pradeep on 26.05.2017 when accused Pradeep was taken by the police; having made any disclosure statement; recovery of keys of the car in his personal search; recovery of challan in his personal search; pointing out of the spot at his instance; recovery of Swift Car at his instance; discovery of blood stains in the Swift Car; preparation of site plan; recovery of clothes worn by him at the time of incident at his instance; being under the influence of alcohol at the time of being challaned; examination of the Swift Car by the FSL team; SHARAD seizure of mobile phone of Arjun; collection of CDR and GUPTA recording statements of relevant witnesses; subsequent opinion Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:02:33 +0530 FIR No. 152/2017 PS Dwarka North Page 15 of 86 given by the doctor; preparation of site plan; deposit of sealed parcel containing belt to DDU Hospital by PW-14; presence of ethyl alcohol in the visera of deceased Marshal; examination of the exhibits by PW-26 Suresh Kumar Singla and his report; and the Call Detail Records.
41. Accused Deepak claimed that lodging of missing report of deceased Marshal and proceedings consequent thereto; story of Pooja returning to her maternal home from the house of sister of PW Arjun; factum of PW-4 Arjun telling Pooja that Pradeep was alocohlic and must have fought with someone; lodging of missing report of Marshal; factum of examination of exhibits and FSL reports; the CD of the FSL result; CDR, CAF and Cell ID Charts; and all the entries in the register of the Makhana Moharrir were all in fact manipulated.
42. Accused Deepak claimed that taking of dead body to the mortuary; recording of DD no. 10 A regarding recovery of deadbody; preparation of tehrir and registration of FIR; exmamination of deceased in the hospital and preparation of his MLC; identification of dead body of deceased; post mortem proceedings; filing of charge-sheet are a matter of record.
43. Accused Deepak showed ignorance to various facts viz. photography and examination of the spot by the crime team; lifting of exhibits from the spot; shifting of dead body to the SHARAD mortuary by PW-24 and PW-25; recording of statement of PW GUPTA Arjun by the IO; factum of Pooja again talking to accused Pradeep from her maternal home; factum of Pooja calling Arjun Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:02:43 +0530 FIR No. 152/2017 PS Dwarka North Page 16 of 86 from the mobile phone of her father in law; identification of dead body by Arjun and handing over of the dead body to him after PM; factum of Pooja calling Arjun from Shankar Vihar for taking her to shopping and accused Pradeep apprehending them in an auto and subsequent scuffling between Pradeep and Arjun; factum of Pradeep threatening Arjun during the period he was on interim bail; findings of post mortem report; lack of love and affection between Pradeep and Pooja; factum of conversation between Pooja and Arjun regarding loan; Pooja having lived with one Kavita for about two days and thereafter going to her maternal home at Shankar Vihar; factum of accused Pradeep bringing her back after 15-20 days; Pooja going to the house of sister of Arjun with him and staying there for about 10-15 days; factum of Pooja thereafter residing at her maternal home for about six months; Arjun giving a phone to Pooja and them having secretly talking to each other on the said phone; recovery of a black colour belt at the instance of accused Pradeep; recovery of mobile phones from Pooja; preparation of scaled site plan; preparation of FSL reports; and investigation conducted by PW-27 in the complaint regarding fight between Pooja and her brother.
44. Accused Deepak, however, specifically admitted various facts viz. apprehension and interrogation of accused Pradeep; friendship between Marshal and accused Pradeep; SHARAD factum of friendship between Arjun and Smt. Pooja, wife of GUPTA accused Pradeep; factum of accused Pradeep apprehending Digitally signed Pooja while talking secretly to Arjun; factum of affair between by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:02:55 +0530 FIR No. 152/2017 PS Dwarka North Page 17 of 86 Arjun and Pooja, factum of Pooja again eloping with accused Arjun to the house of his sister at village Dhulera; apprehension of his brother Pradeep on 26.05.2017 and 27.05.2017 and his apprehension on 28.05.2017; having been challaned by PW-5 and PW-6; factum of accused Pradeep and deceased Marshal also being with him at the time of being challaned by PW-5 and PW6; factum of injury marks on the person of deceased Marshal; factum of informing PW-5 on being inquired that Marshal had fallen under the influence of liquor and had sustained injuries; impounding of his driving license by PW-5; and identification of deceased Marshal by PW-5 and PW6.
45. Both accused Pradeep and Deepak opted to lead evidence in their defence and examined five witnesses in their defence.
46. DW 1 Mr. Gopi is father of accused Deepak and Pradeep. While appearing in the witness box, DW-1 Mr. Gopi deposed that On 20.05.2017, there was a small function at his residence and he had invited all his relatives including his three sisters, their husbands and his daughter alongwith her husband. He further deposed that he had also invited his neighbours and deceased Marshal had also come there to attend the function. He added that at that time, Marshal had disclosed in the presence of all the guests that his brother Arjun was having illicit relations with wife of his son Pradeep and that he had tried to make SHARAD GUPTA understand his brother Arjun that he was doing a immoral work.
Digitally signed He further deposed that Marshal told them that Arjun had by SHARAD GUPTA Date: 2025.05.07 17:03:02 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 18 of 86 threatened him not to interfere in his matter otherwise the result would not be good for him.
47. DW-2 Mr. Balbir is the uncle of accused Pradeep and Deepak. He deposed in the court that on 20.05.2017, there was a small function at the house of his brother in law Gopi and he had been invited alongwith other relatives and neighbourers of Gopi were also present there. He further deposed that at that time one person had come there to attend the function who disclosed that his brother Arjun was having illicit relations with wife of Pradeep and that he had tried to make understand his brother Arjun that he was doing a immoral work. He further deposed that that person further told there that Arjun had threatened him not to interfere in his matter otherwise the result would not be good for him. He added that subsequently, he come to know that his name was Marshal and he was friend of accused Pradeep.
48. DW-3 Sh. Ombir is brother of in law of PW Arjun. He deposed in the court that he knew Arjun who was son of maternal uncle of his wife Smt. Monika, since expired in the year 2017. He stated that Arjun had visited his house in the year 2015 with a girl who was known to him but he could not recollect her name. He stated that the said girl was not wife of Arjun and that she had stayed with Arjun at his house for a SHARAD period of 10 to 15 days. He, however, could not tell the date GUPTA when they left his house.
Digitally signed bySHARAD GUPTA 49. DW-4 Smt. Geeta is aunt of accused Pradeep and Date: 2025.05.07 17:03:11 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 19 of 86 Deepak. She deposed in the court that she knew accused Pradeep and Deepak who were her nephews i.e. son of her brother, namely, Gopi. She further deposed that on 19.05.2017, she had gone to the house of her brother to attend a function which was to be held on 20.05.2017. She stated that at about 06.30-07.00 pm, she was present in the house of her brother when one person, namely, Arjun came there and called Pooja downstairs and told her "tu ghabrana mat main pradeep or marshal ka kaam bitha doonga". She added that on hearing the name of her nephew Pradeep, she gave a slap to Arjun and thereafter, he ran away from the spot. She further deposed that on 20.05.2017, in the function, Marshal came and told Pradeep "tu apni bahu ko samja le main apne bhai ko samja loonga, teri bahu mere bhai ke sath ghumati hain". She added that Marshal also told that "mera bhai meri nahi sunta tu apni bahu ko samjha le".
50. DW-5 Smt. Santosh is the wife of accused Deepak. She deposed in the court that she knew accused persons Pradeep and Deepak being the wife of Deepak and accused Pradeep is her brother-in-law. She further deposed that on 20.05.2017, there was a dharmik pooja in their house and they had called their relatives along with neighbours for that purpose. She added that on 19.05.2017, Arjun came to her house while having phone on his ear and he called Pooja from the ground itself on SHARAD which Pooja came there from upstairs and Arjun told Pooja 'wo GUPTA Marshal aur Pradeep ka kaam bandh dega, chinta mat kar, tujhe mere sath deno hoga'. She added that on this her bua i.e. Geeta Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:03:19 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 20 of 86 who was also there had slapped Arjun and he went away from the spot. She further deposed that on 20.05.2017, in the function, Marshal came and told Pradeep "bhai apni biwi ko samjha le wo mere bhai ke sath ghumti hai'. She added that she asked him as to why he has not made Arjun understand on which he told her that 'mera bhai nahi sunta hai aur kehta hai tu mere beech main mat aa, tere liye thik nahi hai'.
51. The accused persons thereafter closed DE and the matter was posted for final arguments.
52. The record has been carefully perused. The respective submissions of Sh. Girish Kumar Manhas, Ld. Additional Public Prosecutor for the State and Mr. S. S. Sangwan, Ld. Counsel for the accused persons have been heard and duly considered.
ANALYSIS AND FINDINGS Charge for offence punishable under Section 302/34 IPC
53. In order to prove the charge against the accused in respect of the offence punishable under Section 302 IPC, the prosecution was not only required to prove that the deceased Marshal was killed on the alleged date, time and place and in the manner as alleged, but also that it was the accused Pradeep and Deepak, who in furtherance of their common intention, had caused his death.
SHARAD GUPTA 54. As per the case of prosecution, there is no eye Digitally signed by witness of the incident. Prosecution has, however, tried to prove SHARAD GUPTA Date: 2025.05.07 17:03:29 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 21 of 86 its case on the basis of various circumstances appearing before and after the incident, in order to prove the guilt of the accused persons. Therefore, the case of prosecution is essentially based on circumstantial evidence.
55. In AIR 2008 SUPREME COURT 1184 titled as Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra , it was held that, "It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Hanumant Govind Navgundkar Vs. State of MP, AIR 1952 SC 343 , which is one of the earliest decisions on the subject, the Apex Court of land observed as under:-
" It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. SHARAD Again, the circumstances should be of a GUPTA conclusive nature and tendency and they should be such as to exclude every hypothesis Digitally signed by SHARAD but the one proposed to be proved. In other GUPTA words, there must be a chain of evidence so Date: 2025.05.07 17:03:39 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 22 of 86 far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
56. In Padala Veera Reddy Vs. State of AP (1989) Supp (2) SCC 706, the Hon'ble Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:-
(i). the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii). Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii). the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv). the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
57. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused can SHARAD GUPTA not be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:03:54 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 23 of 86 conditions which must be fully established before conviction can be based on circumstantial evidence. These are:-
(i). the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(ii). the facts so established should be consistent only with the hypothesis of the guilt of the accused, that it is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii). the circumstances should be of a conclusive nature and tendency;
(iv). they should exclude every possible hypothesis except the one to be proved; and
(v). 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.
58. In State of UP Vs. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that, "great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."
SHARAD GUPTA 59. The above noted propositions have been reiterated in Bodhraj @ Bodha and Others Vs. State of Jammu and Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:04:02 +0530 FIR No. 152/2017 PS Dwarka North Page 24 of 86 Kashmir, V (2002) SLT 111 ; Bharat Vs, State of MP., I (2003) SLT 724; Jaswant Gir Vs. State of Punjab, III (2006) CCR .
60. In Ramreddy Rajesh Khanna Reddy and another Vs. State of AP, AIR 2006 SC 1656, the Hon'ble Supreme Court while reiterating the settled legal position observed:-
"It is now settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances can not be on any other hypothesis. It is also well settled that suspicion, however grave it may be, can not be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."
61. In Reg. Vs. Hodge [1838 2 Lewin 227] , while sounding in note of caution, it was held that "the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
SHARAD GUPTA 62. Based on the above decisions of the Hon'ble Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:04:12 +0530 FIR No. 152/2017 PS Dwarka North Page 25 of 86 Superior Courts, this court is of the view that in order to prove its case against the accused persons, the prosecution was required to prove the following chain of circumstances, beyond reasonable doubt:
1. It is alleged that the motive of crime is an illicit affair with between PW-3 Ms. Pooja (wife of accused Pradeep) and PW-4 Mr. Arjun (brother of deceased Marshal) due to which accused Pradeep was enimical towards PW-4 Mr. Arjun and his brother Marshal.
2. Deceased Marshal went missing from his house on the night intervening 24/25.05.2017 and on 25.05.2017, his dead body was recovered from near Orissa Bhawan, Sector-16 B Footpath on the drain side.
3. As per the post mortem, the death in this case was homicidal and the cause of death was asphyxia.
4. That the dead body was identified by PW-4 Mr. Arjun who in his statement given to the police raised suspicion over accused Pradeep for the murder of his brother Marshal.
5. Accused Pradeep was interrogated and upon sustained interrogation, he confessed his crime and got recovered the clothes worn by him at the time of incident and the weapon of offence i.e. waist belt used by them to strangulate the deceased.
SHARAD 6. Accused Deepak was also GUPTA Digitally signed by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 26 of 86 17:04:20 +0530 interrogated and upon sustained interrogation, he also confessed his crime and got recovered the clothes worn by him at the time of incident and the vehicle used in the commission of the offence i.e. Swift Car bearing no. DL9CAU1246.
7. That from the search of accused Deepak, a Traffic Challan dated 24.05.2017 (Time 2243 hours/10.43 pm) was recovered.
8. The Swift Car was found having blood stains and the samples thereof were lifted from the said Car.
9. During investigation, IO examined PW-1 Mr. Ravi Kumar, a cousin of the accused persons and PW-5 SI Richhpal and PW-6 Ct. Kapil, the traffic police officials who had challaned accused Deepak for drunken driving on the night of 24.05.2017 and they all confirmed that the deceased Marshal was lastly seen alive by them in the company of accused Pradeep and Deepak.
10. The Waist Belt recovered at the instance of accused Pradeep was examined by the autopsy surgeon who gave his subsequent opinion regarding the same and opined that the fatal injury could be caused by the recovered belt.
11. The exhibits of this case were sent to SHARAD the FSL and the FSL reports GUPTA confirmed about the presence of Digitally signed genetic material of deceased Marshal by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:04:28 +0530 FIR No. 152/2017 PS Dwarka North Page 27 of 86 on the Waist Belt recovered at the instance of accused Pradeep and the Swift Car recovered at the instance of accused Deepak.
Motive of Crime:-
63. It is the version of the prosecution that brother of deceased, namely, PW-4 Arjun was having illicit relationship with wife of accused Pradeep, namely, PW-3 Mrs. Pooja due to which both the accused were inimical towards PW-4 and his brother Marshal and had murdered accused Marshal due to the said enmity. To establish the motive, prosecution has interalia examined PW-3 Mrs. Pooja and PW-4 Mr. Arjun.
64. PW-3 during course of her examination in the court stated that she got married with accused Pradeep in the year 2006 and her relations with her husband were cordial. She stated that she did not know anything about the case. She was declared hostile and was cross-examined by the State during course of her examination. She partly supported the prosecution version. The relevant portion of her testimony is reproduced hereinunder :-
"It is correct to suggest that on 07.07.2017, Inspector Nirmal Sharma, PS Dwarka North had made inquiries from me and my statement was recorded by her regarding this case.
I cannot read Hindi I had not told IO in my statement that after SHARAD marriage, my relaions with my husband accused Pradeep were not cordial and because of that no GUPTA child was born out of the wedlock till after 9 years Digitally signed by of marriage. Confronted with portion A to B of SHARAD GUPTA Date: 2025.05.07 17:04:38 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 28 of 86 previous statement u/s 161 Cr.P.C., now Mark PZ where it is so recorded.
I had told IO in my statement that since we had not great love and affection between husband and wife. I met boy Arjun in Som Bazar market.
It is correct to suggest that Marshal, elder brother of aforesaid Arjun used to come at our home and used to eat and drink with my husband Pradeep. It is correct to suggest that Arjun had a talk with me in Som Bazar in year 2015 for loan. It is correct to suggest that then I had taken the mobile number 9212687286 of Arjun. It is correct to suggest that while talking on phone with Arjun, my husband had apprehended me on the roof of the house. It is correct to suggest that my husband gave me beatings and had broken the phone. It is incorrect to suggest that on that night when I was beaten by my husband. I had gone with Arjun to his home. Voln. I remained with a lady Kavita at Palam for two days at her home. It is correct to suggest that after 2 days of aforesaid incident, I had gone to my maternal home at Anuj Vihar which is Shankar Vihar in Army area. It is correct to suggest that after 15-20 days, my husband accused Pradeep brought me back to matrimonial home and I remained there for one week. It is correct to suggest that thereafter, I went with Arjun to home of his sister at a village in Jhajjar, Haryana where I with Arjun remained for 10-15 days. It is correct to suggest that thereafter, Arjun left me at my parental home and there I remained for 6-7 months. It is correct to suggest that during aforesaid duration I used to have talks with my husband accused Pradeep. It is correct to suggest that son was born to me at my paternal home on 03.06.2016. It is correct to suggest that when my son was 10-15 days old, then I had a quarrel with my brother Suraj SHARAD and I made call to my husband accused Pradeep to come and take me. It is correct to suggest that after GUPTA I came to my matrimonial home, after 1-2 months, Digitally signed by Arjun brought me a mobile phone with a SIM in SHARAD GUPTA Date: 2025.05.07 17:04:49 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 29 of 86 his name and for that I had asked him to bring it for me. It is correct to suggest that I used to talk to Arjun by using the said mobile brought by him. It is correct to suggest that the SIM brought by Arjun aforesaid was 9205450991. It is correct to suggest that since I used to talk to Arjun secretly, because of which my husband accused Pradeep did not permit me to come out of the house." (emphasis supplied)
65. Pertinently, while PW-3 did not admit in so many words that she was having illicit relationship with PW-4 Arjun, she admitted to have secretly talked with Arjun which was discovered by her husband upon which he beat her. She admitted to having gone to the house of sister of PW-4 Arjun with him where she remained for about 10-15 days with Arjun from where she went to her paternal house. She also admitted that PW-4 Arjun had bought her a mobile phone with SIM having number 9205450991 which she used to talk secretly with PW-4 Arjun.
66. To my mind, the testimony of PW-3 is to be read in conjunction with testimony of PW-4 Mr. Arjun. PW-4 Mr. Arjun has deposed that the deceased Marshal was his elder brother who has been murdered. He deposed that he got friendly with Pooja wife of accused Pradeep and that he had been talking to her over phone. He stated that after some days, accused Pradeep, husband of Pooja had apprehended Pooja on the roof while talking to him over phone. He specifically stated that he had affair with Pooja. He, however, could not recollect the date of that incident. He SHARAD stated that Pooja had gone to her maternal home after that GUPTA incident as she might had been beaten by Pradeep. He asserted Digitally signed by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 30 of 86 17:05:00 +0530 that Pooja had left her matrimonial home on the day when Pradeep had beaten her but she reached her parental home after 2-3 days. He stated that he had received phone call of Pooja. He stated that after some days, there was a compromise between accused Pradeep & Pooja and he brought Pooja home, however, 2-4 days later, Pooja again ran away from home and he received her call on which he went to Phase-II, Nangloi-Najafgarh Road, from where he took Pooja to place of his sister at village Dullehera, District Jhajjar, Haryana and where they remained for 12-13 days. He stated that Pooja then told that him that she was missing her mother and that she would reside with her mother and get her delivery done there, on which he took Pooja to the house of her mother at Vasant Vihar, Anuj Vihar which was an army area. He asserted that Pooja again started talking with Pradeep and she also used to talk to him on phone. He stated that Pooja had a fight with her brother and she came back to her matrimonial home. He added that she called him from the mobile phone of her father in law. He added that Pooja demanded a mobile phone and a SIM card from him and he gave her a SIM No. 9205450991 was on his ID and a mobile phone make Samsung to Pooja and he started talking to Pooja on phone on the said number which was on his ID. He further deposed that after some days, accused Pradeep threatened him on phone and said that "Tune Mera Ghar Barbad Kar Diya, Tum Dono Bhai Bach SHARAD Ke Raha Karo. Jitne Din Jina Hai, Utne Din Jee Lo, Nahi to Aisa GUPTA Gayab Karwauga Chanchal Park Se, Koi Dhund Bhi Nahi Digitally signed by Payega". He further added that about 2-4 times, he had crossed SHARAD GUPTA Date: 2025.05.07 17:05:08 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 31 of 86 accused Pradeep in his vehicle, at which accused Pradeep told him "Mere Se Doori Bana Ke Chala Kar, Jaha Se Mai Aau Waha Se Rasta Badal Lia Kar". He further asserted that Pradeep had also told his brother Marshal "Tu Pehle Mera Dost Tha, Ab Tu Mera Dushman Hai, Tum Dono Bhaiyo Ne Mera Ghar Barbad Kar Dia, Tum Dono Bhaiyo Ko Mai Barbad Kar Duga, Chodunga Nahi" and this fact was told to him by deceased Marshal but he did not remember the date. He further deposed that after about 4-5 months, he went to Patna with Narender Sharma, Neeraj Sharma & Uma Shankar and while he was returning from Patna, in the night at around 02:05 AM, he received phone call of Pooja who enquired from him as to where he was and he told her to hang up the phone and sleep as it was night time. He stated that as that time, he was using the phone number 9212867268 and on the asking of Pooja, he told her that he was returning from Patna. He added that Pooja told him that Pradeep had come home and that there was blood on his clothes and his hand. He stated that he told Pooja that Pradeep was an alcoholic and that he might have had consumed liquor and indulged in a fight with someone and thereafter he had cut the phone.
67. It would also be appropriate here to refer to the defence of the accused persons.
SHARAD Excerpts of Statement U/s 313 Cr.P.C. of Accused Pradeep :- GUPTA Q182. Do you have anything else to say ?
Ans. Deepak is my real brother. Arjun, brother Digitally signed by SHARAD of deceased Marshal was having illegal affair GUPTA Date: 2025.05.07 17:05:17 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 32 of 86 with my wife Pooja. Marshal, the deceased was a social person. He had several times advised his younger brother Arjun (PW4) not to have illegal relationship with a married woman who was my wife but Arjun did not listen. Arjun intended to eliminate me from his way so that he may keep his illegal relations with my wife and he also intended to eliminate his own brother Marshal who used to advise him not to continue his illicit relationship with Pooja. In this way, Arjun has killed two birds with one stone by eliminating his own brother Marshal and by implicating Deepak and me. However, Deepak was implicated to ensure that there would be no one to defend me. As per my information, my wife Pooja and my children are still residing with Arjun. The FSL result was manipulated by the police officials in connivance with Arjun.
Excepts of Statement U/s 313 Cr.P.C. of Accused Deepak:-
Q182. Do you have anything else to say ?
Ans. Pradeep is my real brother. Arjun, brother of deceased Marshal was having illegal affair with Pooja, wife of Pradeep. Marshal, the deceased was a social person. He had several times advised his younger brother Arjun (PW4) not to have illegal relationship with a married woman who was the wife of his common friend, my brother but Arjun did not listen. Arjun intended to eliminate my brother Pradeep so that he may keep his illegal relations with wife of Pradeep and he also intended to eliminate his own brother Marshal who used to advised him not to continue his illicit relationship with Pooja. In this way, Arjun has killed two birds with one stone by eliminating his own brother Marshal and by implicating Pradeep and me. However, I Digitally signed by was implicated to ensure that there would be no SHARAD SHARAD GUPTA one to defend Pradeep. The FSL result was GUPTA Date:
2025.05.07 17:05:24 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 33 of 86 manipulated by the police officials in connivance with Arjun.
68. Thus the defence of both the accused was that PW-4 Arjun was having illicit affair with PW-3 Pooja, wife of accused Pradeep. Pertinently, the accused have examined five witnesses in their defence. The evidence of the defence witnesses is being discussed in later parts of this judgment, however, pertinent to the question of motive, the contention of DW-1 Sh. Gopi, father of both the accused was that Marshal had disclosed in a family function on 20.05.2017 that his brother was having illicit relations with wife of Pradeep. DW-2 Sh. Balbir uncle of both the accused has deposed along the same lines.
69. Thus, the cornerstone of defence of the accused persons is also that there was an illicit relationship between PW-3 and PW-4. Also, PW-4 Arjun was cross-examined on behalf of both the accused persons. The relevant portion of cross- examination of PW-4 is being reproduced hereinunder for ready reference : -
"It is correct that I was having love affair with Pooja. My love affair with Pooja started from June 2015. It is correct that my house and the house of accused Pradeep is in the same vicinity which is at a distance of about 500 meters. Accused Pradeep had come to know about my affair with his wife Pooja. I do not remember whether she was having any child when my love affair started with Pooja. Pooja is having two child from her marriage. Their names are Pranav and SHARAD Harshit. Pooja is having custody of Pranav and Harshit. It is wrong to suggest that Pooja is still living GUPTA with me. It is correct that whenever Pooja requires Digitally signed by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 34 of 86 17:05:34 +0530 some articles like phone or clothes then she used to ask me for the same. It is also correct that I also used to provide the same to her. It is also correct that I had also given her money number of times when she demanded the same from me." (emphasis supplied)
70. Similarly, it was put to PW-25 Retired W. Inspector Nirmal Sharma that when she met Pooja and inquired the matter from her, PW-25 came to know that Pooja was having love affair and illicit relationship with Arjun. Thus, even the accused have admitted the fact that PW-4 Arjun was having illicit relationship with PW-3 Ms. Pooja, wife of accused Pradeep.
71. Further, the prosecution has also relied upon various Call Detail Records in order to establish that PW-4 Mr. Arjun and PW-3 Ms. Pooja used to secretly talk to each other. PW-22 has proved on record CAF of mobile phone no. 9205450991 as Ex.PW22/C, its CDR as Ex.PW22/D and the requisite certificate U/s 65 B of the Indian Evidence Act as Ex.PW22/E. As per PW- 22, the said mobile phone number was issued to Arjun S/o Paramjeet as per CAF Ex.PW22/C. As per the prosecution version, the said mobile phone was recovered from PW-3 Ms. Pooja, wife of accused Pradeep and the same was seized by PW- 25 Inspector Nirmal Sharma vide memo Ex.PW3/A. Thus, the recovery of the mobile phone having SIM in the name of PW-4 Arjun from PW-3 Ms. Pooja corroborates the prosecution version. PW-18 Sh. Pawan has proved on record the CAF and SHARAD CDR of the mobile number 9212867268 as Ex.PW18/G and GUPTA Ex.PW18/I. As per Ex.PW18/G, the said mobile phone number Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:05:45 +0530 FIR No. 152/2017 PS Dwarka North Page 35 of 86 belongs to PW-4 Mr. Arjun. As per CDR Ex.PW22/D and Ex.PW18/I various calls were made between the mobile numbers 9212867268 and 9205450991. Also, the aspect that PW-3 and PW-4 used to talk to each other on mobile phone has been duly asserted by PW-3 and PW-4 in their respective testimonies in the court. The prosecution has thus been able to establish that PW-3 and PW-4 used to talk to each other on mobile phone provided to PW-3 Pooja by PW-4 Arjun.
72. It is argued on behalf of the accused that they did not have any motive to kill Marshal and rather, the enmity if any, would have been with PW-4 Arjun. As regards the absence of motive qua deceased Marshal, it is the version of accused themselves that there was an illicit affair between the wife of accused Pradeep and PW-4 Arjun. PW-4 Arjun was the younger brother of the deceased. It is observed that every person behaves differently in a given set of circumstances. It would also be pertinent to refer to the testimony of PW-4. PW-4 in his testimony deposed as follows :-
"After some days, accused Pradeep threatened me on phone and said that "Tune Mera Ghar Barbad Kar Diya, Tum Dono Bhai Bach Ke Raha Karo. Jitne Din Jina Hai, Utne Din Jee Lo, Nahi to Aisa Gayab Karwauga Chanchal Park Se, Koi Dhund Bhi Nahi Payega". 2-4 times, I had moved in the vehicle in front of accused Pradeep and then accused Pradeep told me "Mere Se Doori Bana Ke Chala Kar, Jaha Se Mai Aau SHARAD Waha Se Rasta Badal Lia Kar". Pradeep had also told GUPTA my brother Marshal "Tu Pehle Mera Dost Tha, Ab Tu Digitally signed by SHARAD State Vs. Pradeep and another GUPTA FIR No. 152/2017 PS Dwarka North Page 36 of 86 Date: 2025.05.07 17:05:55 +0530 Mera Dushman Hai, Tum Dono Bhaiyo Ne Mera Ghar Barbad Kar Dia, Tum Dono Bhaiyo Ko Mai Barbad Kar Duga, Chodunga Nahi". This was told to me by Marshal but I do not remember the date when he told me so."
73. The said assertions of PW-4 have not been challenged during trial and have come on record unrebutted and unchallenged. Thus, as per PW-4 Mr. Arjun, the accused were having enmity with him as well as his brother on account of his illicit affair with Ms. Pooja, wife of accused Pradeep. The arguments of the accused are thus liable to be rejected. To my mind, the prosecution has been able to establish the motive in the present case.
Missing of deceased Marshal and subsequent discovery of his dead body on 25.05.2017 :-
74. In order to prove that the deceased Marshal went missing from his house on the night of 24.05.2017, the prosecution has examined PW-9 Smt. Paramjeet, mother of deceased Marshal. While appearing in the witness box, PW-9 Smt. Paramjeet deposed that on 24.05.2017, at about 07.00 pm, her son Marshal left without telling her anything and did not return home. She added that she and her family members searched for her son but he was not found anywhere and she got his missing report Ex.PW9/A1 registered at PS Ranholla. SHARAD GUPTA 75. As per the case of prosecution DD no.36 A Digitally signed Ex.PW9/A1, regarding the missing of deceased Marshal on by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 37 of 86 17:06:02 +0530 24.05.2017 was recorded at PS Ranholla by PW-15 ASI Rajbala on 25.05.2017 at about 02.10 pm and the same was marked to PW-23 ASI Balwan Singh for investigation. PW-23 ASI Balwan Singh deposed in the court that he had forwarded the missing persons information on Zipnet and also flashed the WT Message. He stated that on 26.05.2017, he received information from PS Dwarka North regarding discovery of dead body of a male person having similar description and he shared the said information with the relatives of missing person, who told him that they had also got the information and that they were also proceeding towards the concerned police station.
76. PW-15 ASI Rajbala was not cross-examined by the accused persons despite opportunity. PW-9 Smt. Paramjeet and PW-23 ASI Balwan Singh both have been cross-examined on behalf of the accused persons, however, nothing material could be brought on record to disbelieve their testimonies or that fact of missing of deceased Marshal was manipulated or a fabricated fact.
77. As per the case of prosecution, missing person Marshal was found dead on 25.05.2017 at about 06.30 am by PW-11 HC Pradeep while he was on patrolling duty from 06.00 am to 09.00 am in the area of Sector-16, 17 and 18, Dwarka, New Delhi. He has deposed that at about 06.30 am, when he was SHARAD in the area of Sector-16 B, Near Orissa Sadan, he noticed on GUPTA person lying on footpath near corner of road and on checking the Digitally signed by SHARAD said person was found dead. He has deposed that he informed the GUPTA Date: 2025.05.07 17:06:09 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 38 of 86 duty officer ASI Sunder Lal telephonically in this regard. The prosecution has also examined PW-10 ASI Sunder Lal who has deposed that while posted as Duty Officer/DD writer in the intervening night of 24/25.05.2017, he had received information from HC Pradeep at about 06.30 am that a male dead body was found lying in Sector-16 Dwarka which he reduced into writing vide DD no. 10 A Ex.PW10/A. PW-10 has not been cross- examined regarding recording of the said DD Ex.PW10/A. Furthermore, the prosecution has also examined PW-24 SI Rajender who as per prosecution version had reached at the spot where he found HC Pradeep and the dead body and had called the crime team. PW-24 has also deposed that he prepared the tehrir Ex.PW24/A and got the FIR registered in the present case through HC Pradeep from Duty Officer PW-7 ASI Sunita vide Ex.PW7/A. The Duty Officer has proved the copy of FIR in the present case as Ex.PW7/A, her endorsement on the tehrir as Ex.PW7/B and the 65 B Indian Evidence Act certificate as Ex.PW7/C.
78. Thus, the prosecution has been able to establish the fact that deceased Marshal went missing in the night of 24.05.2017 and his dead body was recovered in the morning of 25.05.2017 from near Orissa Sadan, under tree no. 259, Sector-16 B, Dwarka, Delhi.
SHARAD Identification of the dead body by its relatives and PW-4 GUPTA Mr. Arjun (Brother of deceased) raising suspicion over accused Pradeep :-
Digitally signed by SHARAD GUPTADate: 2025.05.07 State Vs. Pradeep and another 17:06:18 +0530 FIR No. 152/2017 PS Dwarka North Page 39 of 86
79. As per the case of prosecution, during the Post Mortem Proceedings, the dead body of deceased Marshal was identified by his brother Mr. Arjun and his uncle Mr. Iqbal Singh vide their identification statements Ex.PW4/A and Ex.PW24/C.
80. As a matter of fact, at no point during trial, it has been disputed by the accused persons that the dead body recovered in this case was not of deceased Marshal.
81. Furthermore, as per PW-25 Retired Women Inspector Nirmal Sharma, who is the IO of this case, on
26.05.2017, PW-4 Arjun came to the police station and told her that he has received information about recovery of a dead body in the area of PS Dwarka North and that she showed him the photographs of the dead body and the slippers found near the spot. She further deposed that PW Arjun told her that the photographs and the slippers were of his deceased brother Marshal, whereafter, she sent him to DDU Hospital alongwith Ct. Yogesh where he identified the dead body of his brother Marshal and she recorded his statement under Section 161 Cr.P.C. wherein he raised suspicion over accused Pradeep for the murder of his brother. PW-4 Mr. Arjun has corroborated the version of PW-25 in material particulars.
82. It is argued on behalf of the accused that PW-4 Arjun SHARAD in his cross-examination admitted that he had not given any GUPTA statement to the police at any point of time. It is thus argued that Digitally signed by the entire investigation is rendered non-est. SHARAD GUPTA Date: 2025.05.07 17:06:27 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 40 of 86
83. In this regard, in his cross-examination, dated 21.05.2024, PW-4 Sh. Arjun has admitted that it was correct that he had never made any statement in respect of the present case to any court or any police official, prior to recording of deposition in court. It is, however, pertinent to observe that in his examination in chief dated 20.09.2018, contention of PW-4 was that his statement was recorded by the police. His assertion was also that he had told all details to the IO of this case. Thus, to my mind, the assertion of PW-4 in his cross-examination that he never gave any statement to the police is at the most amiguous. Furthermore, it is to be observed that the incident in the present case had happened in the intervening night of 24/25.05.2017 while PW-4 was examined in chief on 20.09.2018 i.e. about one year and three months after the incident, while he was cross- examined on 21.05.2024 i.e. about six years and eleven months after the incident and about five years and eight months after his examination in chief. Human memory is neither perfect nor infalliable. With passage of time, some discrepancies here and there in the testimonies of witnesses are to be expected. Thus, merely because in his cross-examination, PW-4 stated that his statement was not previously recorded is of no consequence and does not affect the broad merits of the prosecution version.
84. It is relevant to note here that even during the course SHARAD of investigation PW-4 Mr. Arjun had raised suspicion over GUPTA accused Pradeep. He also reinterated in his examination in chief that the accused Pradeep had threatened him and his brother Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:06:35 +0530 FIR No. 152/2017 PS Dwarka North Page 41 of 86 Marshal. The stand of PW-4 in this regard was thus consistent during investigation and trial.
Recoveries viz. weapon of offence i.e. Waist Belt at the instance of accused Pradeep and vehicle used in commission of offence i.e. Swift Car bearing no. DL9CAU1246 at the instance of accused Deepak :-
85. As per the prosecution version, Swift Car bearing no. DL9CAU1246 used in commission of the offence was seized in the present matter at the instance of accused Deepak. Furthermore, as per the prosecution version, accused Pradeep got recovered one Waist Belt from one room on First Floor of his house which was duly sealed and seized vide Ex.PW24/L.
86. As per prosecution version, the belt used in commission of the offence was got recovered by accused Pradeep from his house on 28.05.2017 from one room on first floor of his house. To establish its version in this regard, prosecution has interalia examined PW-3 Mrs. Pooja. Pertinently, in her cross- examination by the State, PW-3 admitted that accused Pradeep had got recovered one black colour belt from the home. PW-3 was cross-examined by the accused in this regard and she admitted that under pressure of police, accused Pradeep had taken out the belt from home and given it to the police. This assertion to my mind is insufficient to shake the veracity of SHARAD prosecution version regarding the recovery of the belt at the GUPTA instance of accused Pradeep from his house. The place where the Digitally signed by belt was kept was within special knowledge of accused Pradeep SHARAD GUPTA Date: 2025.05.07 17:06:44 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 42 of 86 and the recovery of the belt used in commission of the offence at the instance of accused Pradeep fortifies the prosecution version. Pertinently, it is not the case of the accused that the belt was planted in the house of the accused. Rather, testimony of PW-3 suggests that the belt was recovered from the house of the accused at the instance of accused Pradeep.
87. Furthermore, the prosecution has also examined PW- 25 W Inspector Nirmal Sharma, IO of the case who has deposed as follows : -
"Thereafter on 27.05.2017, I alongwith SI Rajender, Ct. Sunil and other staff reached at the house of accused Pradeep at H.No.41D, Satyam Vihar, Chanchal Park, New Delhi where accused Pradeep and his wife Pooja met us. Thereafter, accused Pradeep and Pooja were interrogated at home. Statement of Pooja was recorded by me at home and we brought Pradeep to PS. On sustained interrogation, the accused Pradeep is involvement in the present case. Thereafter, I arrested the accused Pradeep vide arrest memo Ex.PW24/G bearing my signatures at point X. Personal search of accused was also conducted on which one mobile phone was found. The personal search memo is Ex.PW24/H bearing my signatures at point X. Disclosure of accused was also recorded vide Ex.PW24/I bearing my signatures at point X. Thereafter the accused was taken out from PS and accused lead us to the spot i.e. the place where the dead body was found. The accused pointed towards the place where he threw the dead body. The pointing out memo was prepared which is Ex.PW24/J bearing my signatures at point X. SHARAD On 28.05.2017, the accused Pradeep was GUPTA again interrogated. The accused revealed that the Digitally signed by belt with which he strangulated the deceased was SHARAD GUPTA Date: 2025.05.07 17:06:52 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 43 of 86 lying in his house and can be recovered. Thereafter, the supplementary disclosure statement was recorded by me vide Ex.PW24/M bearing my signatures at point X. The accused was produced before the court and PC remand was taken. Thereafter, the accused lead me and police team i.e. SI Rajender and Ct. Sunil to his house. The accused then took us to room at first floor of the said premises and from the wall behind the door, one waist belt was found which was taken by the accused stated to be the belt with which he strangulated the deceased. The belt was of black color and word OLIMPO was written on it. The same was then put in a white cloth pullanda and sealed with the seal of NS and seized by me vide Ex.PW24/L. Prior to the seizure of belt, I had also seized the clothes of the accused Pradeep from his house i.e. one T-shirt and one jeans pant which were stated to have been already washed away."
.......
On 29.05.2017, I alongwith SI Rajender and staff had reached H.No.31/60, East Mehram Nagar, Palam Airport as information regarding the presence of accused Deepak was given to me by his jija.
Thereafter, we found accused Deepak in the said premises and then I interrogated him and arrested him vide Ex.PW24/N bearing my signatures at point X. The personal search of accused was also conducted vide Ex.PW24/O bearing my signatures at point X. During personal search of accused, the key of vehicle was recovered and one copy of traffic challan was also recovered. The traffic challan was separately seized by me vide Ex.PW24/Q bearing my signatures at point X. The traffic challan copy is Ex.PW5/A. I had recorded the disclosure of accused Deepak vide Ex.PW24/P bearing my signatures at point X. Thereafter, the accused Deepak lead us to SHARAD the spot where the dead body was found. The site GUPTA identification memo was prepared by me vide Ex.PW24/R bearing my signatures at point X. Digitally signed by SHARAD GUPTA State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 44 of 86 Date: 2025.05.07 17:07:01 +0530 Thereafter, the accused lead us to Nangloi near Mother Diary booth gali no.9 where he pointed one Swift car bearing registration no.DL-9C-AU-1246 stated to be vehicle in which the offence was committed by them. The vehicle was covered with cloth. On cursory inspection, I had also found some blood stains. The vehicle was then seized by me vide Ex.PW24/S bearing my signatures at point X. At the time of arrest of accused, one mobile phone was also recovered from the personal search of accused.
On 30.05.2017, the accused Deepak had also made supplementary disclosure statement in which he revealed that the seat cover of vehicle was thrown by him in the garbage van of MCD and the clothes which he was wearing at the time of arrest was the clothes which was worn by him at the time of commission of offence. The said supplementary statement is Ex.PW24/T bearing my signatures at point X. Thereafter, the said clothes were taken off from the accused and then were put in a cloth pullanda and was sealed with the seal of NS and seized by me vide Ex.PW24/U bearing my signatures at point X. FSL team was also informed by me which came in the PS and inspected the vehicle i.e. Maruti Swift car parked in the PS and found the blood stains which were lifted and handed over to me. The same were then sealed by me with the seal of NS and was seized vide memo now Ex.PW25/D bearing my signatures at point X . The seal was then handed over to SI Rajender."
(emphasis supplied)
88. The testimony of PW-25 in this regard is corroborated in material particulars by the testimony of PW-24, SHARAD who has deposed alongwith the same lines as PW-25. The GUPTA relevant portions of his testimony are reproduced herein for ready Digitally signed by SHARAD reference :-
GUPTA Date: 2025.05.0717:07:14 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 45 of 86 "On 27.05.2017, the PM proceedings on the body of deceased Marshal was initiated. I had also accompanied with the IO to DDU hospital. The dead body was identified by Arjun vide Ex.PW4/A bearing my signatures at point B and one Iqbal Singh, the relative of deceased vide Ex. PW24/C bearing my signatures at point A. After post mortem, the dead body was handed over to the relatives vide Ex.PW4/C. The doctor had handed over the sealed exhibits containing the clothes of deceased, blood in gauze and viscera to me which I handed over to IO who seized the same vide Ex.PW24/D to Ex.PW24/F respectively. Thereafter, the accused Pardeep was apprehended from his house at H.No.N41, Chanchal Park, Bakkarwala, New Delhi by me and IO. Thereafter, he was brought to PS. Ct. Sunil was also with us. The mobile phone of accused was also seized by the IO after arresting him. The arrest memo is now Ex.PW24/G bearing my signatures at point A. Personal search of accused Pardeep was got conducted vide Ex.PW24/H bearing my signatures at point A. Disclosure statement of accused was also recorded vide Ex.PW24/I bearing my signatures at point A. Thereafter, the accused took us to where the pointing out memo was prepared by the IO at his instance vide Ex.PW24/J bearing my signatures at point A. Thereafter the accused took us to his house where he got recovered the wearing apparels which were worn by him at the time of commission of murder. Same were put in a white cloth pullanda and was sealed with the seal of MS. The seizure memo of clothes of accused Pardeep is now Ex.PW24/K bearing my signatures at point A. The other accused persons, namely, Deepak and the vehicle used in commission of crime was also tried to be searched but could not be found.
On 28.05.2017, the accused Pardeep lead us again to his house where a belt was recovered SHARAD allegedly used in commission of offence. The belt GUPTA was of black color. Some words were inscribed on it but I do not remember the same now. The same was Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:07:22 +0530 FIR No. 152/2017 PS Dwarka North Page 46 of 86 seized by IO by putting the same in a white cloth pullanda and sealing the same with the seal of NS. The seizure memo of same is now Ex.PW24/L bearing my signatures at point A .
.....
The accused Deepak could not be found. On next day i.e. 29.05.2017, I alongwith IO and Ct. Sunil reached at East Mehram Nagar from where we apprehended the other accused Deepak from house no.31/20. He was interrogated and then arrested vide Ex.PW24/N bearing my signatures at point A. Personal search of accused was taken. One mobile phone was also recovered from the accused as well as one key bunch having one key of Suzuki car. Personal search of accused was conducted vide Ex.PW24/O bearing my signatures at point A. Disclosure statement of accused was recorded vide Ex.PW24/P bearing my signatures at point A. One challan of traffic police Gurgaon was also found in the pant pocket of the accused. Same was also seized by IO vide Ex.PW24/Q bearing my signatures at point A. The challan is already Ex.PW5/A. The accused Deepak took us to the spot where pointing out memo was prepared vide Ex.PW24/R bearing my signatures at point A. Thereafter, the accused Deepak lead us to JJ Colony, No.2 near Nangloi Railway station near Mother Dairy from where the accused got recovered Maruti Swift car bearing no.DL- 9CAU-1246. The said car was covered with car cover. The car was opened with the help of car key which was found in the pant pocket of accused Deepak at the time of his arrest. There were blood stains in the car. The vehicle was seized by the IO vide Ex.PW24/S." (emphasis supplied)
89. Thus, through the testimonies of PW-24 and PW-25, the prosecution has been able to establish the recovery of the SHARAD Swift Car with blood stains at the instance of accused Deepak GUPTA from near Nangloi Railway Station on 29.05.2017. Furthermore, Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:07:32 +0530 FIR No. 152/2017 PS Dwarka North Page 47 of 86 through the testimony of PW-3, PW-24 and PW-25, the prosecution has been able to establish that the waist belt used in the commission of the offence was recovered at the instance of accused Pradeep from his house on 28.05.2017.
Recovery of Challan from the possession of accused Deepak :-
90. It is the case of prosecution as well as a fact admitted by the accused persons that on the night of 24.05.2017 at about 2243 hours/10.43 pm accused Deepak was challaned by Haryana Traffic Police. As per the prosecution version the said challan Ex.PW5/A was recovered from the possession of accused Deepak vide memo Ex.PW24/Q. Evidence lead by the prosecution to prove that deceased Marshal was lastly seen alive in the company of accused Pradeep and Deepak :-
91. As per the case of prosecution, accused Pradeep and Deepak picked up deceased Marshal from near his house and at that time, PW-1 Mr. Ravi Kumar was also with accused Pradeep and Deepak in their car. As per the case of prosecution, in the presence of PW-1 Mr. Ravi Kumar, accused Pradeep had slapped deceased Marshal in the car and after sometime, he deboarded from the car of accused Pradeep and went to his house. It is, however, a matter of record that he did not support the case of SHARAD GUPTA prosecution while appearing in the witness box, despite cross-
examination by the Ld. Addl. PP for the State.
Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:07:41 +0530State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 48 of 86
92. As per the case of prosecution, on the date of incident, PW-2 Mr. Jai Bhagwan @ Bittoo had also boarded the car of accused Pradeep and Deepak in which PW-1 Mr. Ravi Kumar was also present, however, he alighted from the said car before deceased Marshal was called inside the said car. It is, however, a case of prosecution that even PW-2 did not support the case of prosecution despite cross-examination by the Ld. Addl. PP for the State.
93. Furthermore, to establish that the deceased was last seen with the accused persons, the prosecution has inter alia examined PW-5 SI Rich Pal and PW-6 Ct. Kapil. As per the prosecution version, the accused persons and the deceased were stopped by PW-5 SI Rich Pal and PW-6 Ct. Kapil, who were then posted in concerned Traffic Circle, Gurugram and accused Deepak was challaned as he was found to be driving car bearing no. DL9CAU 1246 (wrongly mentioned as DL9CAB1246) under the influence of alcohol. PW-5 SI Rich Pal has deposed that on 24.05.2017, he was posted as ASI in Traffic East at Gurgaon and was on duty at Signature Tower Crossing, Highway Gurgaon to check for drunken driving. He added that at about 10 or 10.30pm on 24.05.2017, one Swift car no. DL9CAB1246 came from side of Jaipur and was moving towards Delhi. He stated that he alongwith Ct. Kapil had stopped the said vehicle and on checking the driver of the said vehicle, namely, Deepak on alcohol meter, SHARAD the reading for alcohol was found to be 54mg/100ml. He further GUPTA deposed that they obtained the driving licence of Deepak and Digitally signed challan was issued to him, copy of which was also handed over by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:07:47 +0530 FIR No. 152/2017 PS Dwarka North Page 49 of 86 to Deepak after obtaining his signatures. He further deposed that in the said vehicle two other persons were also seated and amongst them Pradeep was seated on seat adjacent to driver seat and other person Marshal was seated on back seat of the car. He specifically added that Marshal was having injury marks on his face and he inquired from Deepak about the injury marks on Marshal on which Deepak told him that "isne daru pee rakhi hai, pad gaya tha". He stated that he had issued challan for offences punishable U/s 188/185 M.V.Act. PW-5 SI Richhpal duly identified both the accused persons in the court.
94. Similarly, PW-6 Ct. Kapil has deposed that on 24.05.2017, he was posted in Traffic and was on duty at Signature Tower Crossing, Highway Gurgaon alongwith ASI Richhpal. He stated that in between 10.30 pm to 11 pm, one Swift car no. DL9CAB1246 came from side of Jaipur and was going towards Delhi. He stated that they got the said vehicle stopped and tested the breath of driver Deepak on alcohol meter and the reading was found to be 54mg/100ml. He stated that the slip was taken out from the machine and was given to ASI Richpal, who issued challan in the name of Deepak, driver of said car. PW-6 Ct. Kapil duly identified accused Deepak in the court. He stated that ASI Richpal had talks with said Deepak. He added that there were three persons were in the said car and the car was being driven by accused Deepak. He specifically stated that the person sitting on the back seat of the car was having SHARAD GUPTA injury marks on his face. PW-6 Ct. Kapil identified accused Digitally signed by Pradeep as the third person who was sitting on the seat adjacent SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:07:58 +0530 FIR No. 152/2017 PS Dwarka North Page 50 of 86 to driver seat of the said car. PW-6 Ct. Kapil could not give the name of the person who was sitting on the back seat of the car and had injury marks on his face. He stated that ASI Richpal had inquired from accused Deepak as to how the person on back seat of the car had sustained injuries and accused Deepak had told him that the said person had fallen under the influence of alcohol. He added that driving licence of accused Deepak was obtained when he was challaned. Particularly, PW-6 was cross-examined by Ld. Addl. PP for the State and he identified the persons sitting in the back of the car being driven by accused Deepak as deceased Marshal. He also stated that photograph Ex.P1 of deceased was shown to him by the IO in the PS.
95. It is argued on behalf of the accused that the testimonies of PW-5 and PW-6 cannot be relied upon as they were declared partly hostile and were cross-examined by Ld. Addl. PP for the State.
96. In this context, it is well settled by the decisions of the Hon'ble Apex Court in Bhagwan Singh v. State of Haryana [1976] 2 SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233, Syed lqbal v. State of Karnataka, [1980] 1 SCR 95 and reiterated in Khujji @ Surendra Tiwari vs The State Of Madhya Pradesh 1991 AIR 1853, that the evidence of a prosecution witness cannot be rejected in toto merely because the SHARAD prosecution chose to treat him as hostile and cross-examined GUPTA him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:08:08 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 51 of 86 to the extent their version is found to be dependable on a careful scrutiny thereof.
97. To my mind, the testimony of PW-5 and PW-6 is corroborated by the fact that accused Deepak was challaned for driving under influence of liquor and challan form Ex.PW5/A was issued in this regard. The prosecution version is fortified by the challan form Ex.PW5/A which was issued against accused Deepak who was found driving car bearing no. DL9CAU1246. The said car was seized vide seizure memo Ex.PW24/S from near Nangloi Railway Station on 29.05.2017 at pointing out of accused Deepak. Furthermore, the prosecution version is also corroborated in this regard by examination report Ex.PW21/A of viscera of deceased Marshal as per which blood sample of deceased was found to contain ethyl alcohol 326.7 mg/100 ml of blood and ethyl alcohol was also found in stomach and pieces of small intestine with contents and pieces of liver, spleen and kidney of the deceased. Pertinently, as per PW-5 and PW-6, accused Deepak when asked about injury marks on face of deceased Marshal, had told that ''isne daru pi rakhi hai, pad gaya tha'. Thus, the testimonies of PW-5 and PW-6 are corroborated on record by other circumstances of the case and can be safely relied upon.
98. It is further argued that both PW-5 and PW-6 were SHARAD unable to tell the name of the police station in Delhi which they GUPTA had visited for the purpose of investigation of this case. It is also Digitally signed by argued that PW-5 stated that he had gone to the concerned police SHARAD GUPTA Date: 2025.05.07 17:08:24 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 52 of 86 station in Delhi on 09.06.2017 while PW-6 stated that he had gone to the concerned police station on 09.07.2017. It is urged that PW-5 did not support the prosecution version that he had visited the concerned police station on 07.06.2017 and PW-6, Ct. Kapil did not support the prosecution version that he had visited the police station concerned on 09.06.2017. It is also argued that PW-5 denied in his cross-examination by the State that he was shown photographs of deceased Marshal in the police station concerned. It is also argued that PW-5 and PW-6 gave the number of the car as DL9CAB1246 instead of DL9CAU1246.
99. In this context, it is pertinent to observe that PW-5 and PW-6 were examined in the court on 21.08.2019 i.e. after about two years and two months and twenty seven days after the incident. In these circumstances, some discrepancies here and there in the testimonies of the witnesses are to be expected. Pertinently, both PW-5 and PW-6 in their cross-examination by the State disclosed that due to passage of time they had forgotten certain facts. Thus, merely because PW-5 and PW-6 were not able to tell the name of the concerned Police Station where they had visited and the date on which they had so visited the said police station is of no consequence. So far as the identification of the deceased as the third person who was sitting in the car driven by accused Deepak is concerned, PW-5 in his testimony recapitulated above has specifically disclosed that the name of SHARAD the said third person was Marshal. Furthermore, in his cross- GUPTA examination by the State, PW-5 identified the deceased from Digitally signed by photographs on record and stated that the photographs shown to SHARAD GUPTA Date: 2025.05.07 17:08:35 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 53 of 86 him was of the same person who was sitting in the back seat of the said car. Similarly, PW-6 in his cross-examination by the State identified the deceased as the third person sitting in the car from his photograph Ex.PX1 which was shown to him in the court. He had also deposed that the said photograph was also shown to him in the police station during course of investigation.
100. As regards, the argument that PW-5 and PW-6 were unable to give the correct registration number of the car, it is pertinent to observe that the registration number of the car is given as DL9CAU1246 in the challan Ex.PW5/A copy whereof was seized from the possession of accused Deepak vide memo Ex.PW24/9. Pertinently, the challan bears the correct registration number of the vehicle as DL9CAU1246. The challan Ex.PW5/A thus corroborates the prosecution version and merely because PW-5 and PW-6 were not able to tell the entire registration number of the car is of no consequence.
101. It is argued on behalf of the accused that the prosecution version is itself unbelievable. It is argued that in case, the third person in the car was Marshal and he was having injuries on his face, there was no occasion for him not to seek police help when the car of the accused persons was itself stopped by police officials.
102. In this context, the prosecution has been able to SHARAD establish that the accused persons as well as the deceased were GUPTA under influence of liquor when accused Deepak was challaned.
Digitally signed by SHARAD GUPTAState Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 54 of 86 17:08:45 +0530 The only inference is that they had consumed liquor together. Thus, there was no occasion for deceased Marshal to seek police help. It is also observed that the permutations and combinations of human conduct are infinite. Every person behaves differently in a given set of circumstances. When the accused persons had consumed liquor with the deceased, there was no occasion for him to apprehend that he would be killed by the accused persons. There was thus no occasion for him to seek police help when stopped by Gurugram Police.
103. Thus, through the testimonies of PW-5 and PW-6, the prosecution has been able to establish that the deceased was lastly seen alive in the car driven by accused Deepak. The prosecution version is corroborated by the fact that the accused Deepak was challaned for driving under influence of liquor vide Ex.PW5/A and his driving license was also impounded by the concerned police officials.
104. There is another aspect of the matter. During course of recording of testimonies U/s 313 Cr.P.C., the entire circumstances including the fact of last seen evidence was put to both the accused persons. The specific questions and the responses of the accused persons thereto are being reproduced hereunder for ready reference.
SHARAD Excerpts of Statement U/s 313 Cr.P.C. of Accused Pradeep :-
GUPTA Q118. It is in evidence against you in the testimony of PW-5 SI Richpal and PW-6 Ct. Kapil that on Digitally signed by SHARAD 24.05.2017, they were posted in Traffic Department GUPTA Date: 2025.05.07 17:08:54 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 55 of 86 of Haryana police in Gurgaon and were having their duty at signature tower crossing highway Gurgaon and were checking the vehicles for drunk and drive. At about 10.00-11.00 pm, one Swift car bearing registration no. DL-9CAB-1246 came from the side of Jaipur and was moving towards Delhi which was stopped by them. What have you to say?
Ans. It is correct.
Q121. It is in evidence against you in the testimony of PW-5 that thereafter the said driver i.e. your co- accused Deepak had gone away with the vehicle wherein two other persons were sitted one of them was you, sitting on the seal adjacent to driver seal and other person i.e. Marshal was sitted on the back seat of car who was having injury mark on his face. What have you to say?
Ans. It is correct.
Q122. It is in evidence against you in the testimony of PW-3 that on enquiry from co-accused Deepak about the injury mark of Marshal, your co-accused Deepak told him that "isne daaru pi rakhi hain pad gaya tha". What have you to say?
Ans. It is correct.
Q124. It is in evidence against you in the testimony of PW-5 that the photographs of Marshal i.e. Ex.PX1 which is on judicial record was shown to PW5 who proved that it was the photographs of the same person i.e. Marshal who was on the back seat of Swift car driven by your co-accused Deepak. What have you to say?
Ans. It is correct.
Q125. It is in evidence against you in the testimony of PW-6 that after the test, PW6 issued challan in SHARAD the name of your co-accused Deepak and obtained GUPTA driving license of your co-accused Deepak. What Digitally signed by have you to say?SHARAD GUPTA Date: 2025.05.07
17:09:01 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 56 of 86 Ans. It is correct.
Q126. It is in evidence against you in the testimony of PW-6 that there were three persons in the said car and the person who was sitting on the back seat of car was having injury mark on his face and the third person i.e. you were sitting on the seat adjacent to driver seat. What have you to say? Ans. It is correct.
Q127. It is in evidence against you in the testimony of PW-6 that PW5 had enquired from your co- accused Deepak in respect of the injuries on the person sitting on the back seat of car on which your co-accused Deepak had said that the said person had fallen as he had consumed liquor. What have you to say?
Ans. It is correct.
Excerpts of Statement U/s 313 Cr.P.C. of Accused Deepak :-
Q118. It is in evidence against you in the testimony of PW-5 SI Richpal and PW-6 Ct. Kapil that on 24.05.2017, they were posted in Traffic Department of Haryana police in Gurgaon and were having their duty at signature tower crossing highway Gurgaon and were checking the vehicles for drunk and drive. At about 10.00-11.00 pm, one Swift car bearing registration no. DL-9CAB-1246 came from the side of Jaipur and was moving towards Delhi which was stopped by them. What have you to say?
Ans. It is correct.
Q121. It is in evidence against you in the testimony of PW-5 that thereafter the said driver i.e. you had gone away with the vehicle wherein two other persons were sitted one of them was your co-
SHARAD accused Pradeep, sitting on the seal adjacent to GUPTA driver seal and other person i.e. Marshal was sitted on the back seat of car who was having injury mark Digitally signed by on his face. What have you to say? SHARAD GUPTA Date: 2025.05.07 17:09:11 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 57 of 86 Ans. It is correct.
Q122. It is in evidence against you in the testimony of PW-5 that on enquiry from you about the injury mark of Marshal, you told him that "isne daaru pi rakhi hain pad gaya tha". What have you to say? Ans. It is correct.
Q124. It is in evidence against you in the testimony of PW-5 that the photographs of Marshal i.e. Ex.PX1 which is on judicial record was shown to PW5 who proved that it was the photographs of the same person i.e. Marshal who was on the back seat of Swift car driven by you. What have you to say? Ans. It is correct.
Q125. It is in evidence against you in the testimony of PW-6 that after the test, PW6 issued challan in the name of you and obtained driving license of yours. What have you to say?
Ans. It is correct. But I had not taken liquor.
Q126. It is in evidence against you in the testimony of PW-6 that there were three persons in the said car and the person who was sitting on the back seat of car was having injury mark on his face and the third person i.e. your co-accused Pradeep were sitting on the seat adjacent to driver seat. What have you to say?
Ans. It is correct.
Q127. It is in evidence against you in the testimony of PW-6 that PW5 had enquired from you in respect of the injuries on the person sitting on the back seat of car on which you had said that the said person had fallen as he had consumed liquor. What have you to say?
SHARAD Ans. It is correct. GUPTA
Digitally signed 105. The above statements can be considered in evidence by SHARAD GUPTA Date: 2025.05.07 17:09:20 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 58 of 86 against the accused in view of sub clause 4 of section 313 Cr.P.C. and the law laid down in Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R.(Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315.
106. During course of arguments, it was urged on behalf of the accused persons that the person sitting in the back of the car was in fact not Marshal. This argument of accused to my mind is neither here nor there and is against the record of the case. Accused cannot lightly wriggle out of the assertions made by them in their statements made U/s 313 Cr.P.C. on the basis of bald assertions made in course of final arguments.
107. As regards the appreciation and significance of last seen evidence, reliance can be placed on the case of ARVIND @ CHHOTU vs. State, in Crl.A.Nos.362/2001, decided on 10.08.2009, wherein the Hon'ble Division Bench of Hon'ble High Court of Delhi has held that the theory of last seen evidence is based on principles of probabilities and cause and connection. It was held as under :-
"25. The last seen theory relates to evidence which is not direct evidence i.e. is SHARAD circumstantial evidence. It is settled law that to GUPTA sustain a conviction on circumstantial evidence, the Digitally signed by SHARAD GUPTA State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 59 of 86 Date: 2025.05.07 17:09:35 +0530 chain of circumstances has to be so complete that the finger of accusation unerringly points towards the guilt of the accused and rules out the innocence.
26. The foundation of the last seen theory is based on principles of probability and cause and connection.
27. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.
28. As observed in the decisions reported as (2002) 6 SCC 715 Mohibur Rahman Vs. State of Assam, there may be cases where a single circumstance is of a kind that a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the deceased suffered death or should own the responsibility for homicide.
29. Thus, at the heart of the matter of a circumstantial evidence is the principle: of a rational mind being persuaded to reach an irresistible conclusion qua the guilt of the accused.
30. It is the quality of evidence and not the number which matters. A criminal trial is not a race at which the winner is determined with reference to the length run by the prosecution or the SHARAD defence. It is also not a number game where the GUPTA number of circumstances would determine the guilt Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:09:44 +0530 FIR No. 152/2017 PS Dwarka North Page 60 of 86 or otherwise.
31. We can do no better other than to refer to an illustration, aptly illustrated in the decision reported as 2000 (8) SCC 382 State of W.B. Vs. Mir Mohammad Omar & Ors.
32. Debating on the issue whether the sole evidence of an accused being last seen in the company of the deceased would be sufficient to sustain a conviction, the Supreme Court held that the presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position.
33. The legislative foundation to the said rule of inference was located in Section 114 of the Evidence Act which empowers the Court to presume the existence of any fact which is likely to have happened. In that process, the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. The illustration by the Court succeeds SHARAD the aforenoted legal principles culled out by the GUPTA Court in para 33 of the decision. The hypothetical Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:09:52 +0530 FIR No. 152/2017 PS Dwarka North Page 61 of 86 illustration highlighted by the Courts is of a boy being kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappearing with the prey. The question posed is: what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere.
35. The answer is provided: in such a case, the only inference of reasonable certainty is that the boy was killed by the kidnappers unless the kidnappers explain otherwise.
36. Would it make any difference if the dead body of the kidnapped boy is found after 10 days. To our mind, with reference to the hypothetical case posed by the Supreme Court, it would make no difference. The reason is that, if a person has no lawful reason to be in the company of another person, as in the case of kidnapping, whatever may be the length of time between the incident of kidnapping and the victim being found dead, unless the kidnapper explains the time and place where he parted company with the prey, the kidnapper must own the guilt.
37. There is another legal principle on which aforesaid inference can be founded. Section 106 of the Evidence Act embodies the legal principle that where a fact is especially within the knowledge of any person, the burden of proving SHARAD that fact is upon him. The philosophy behind GUPTA Section 106 of the Evidence Act is that a knowledge Digitally signed by SHARAD GUPTA of a person rests in his brain or his mind. It can Date: 2025.05.07 17:10:00 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 62 of 86 never be accessed or exposed by the opposite party; at a criminal trial, the opposite party being the prosecution. The only rider which needs to be noted, on the applicability of Section 106 of the Evidence Act is, at a criminal trial, that the prosecution must reach the stage by leading cogent and clinching evidence where further deadlock can be broken only by accessing the knowledge of the accused and only when the silence of the accused or not giving an explanation by the accused would attract the adverse inference against him.
38. It is settled law that in the evaluation of evidence, circumstances surrounding a fact play a very important role. Indeed, denuding circumstance in which a fact occurred would render the evidence fairly sterile and incapable of any meaningful appreciation.
39. The various judicial pronouncements which have been referred to by learned counsel for the parties show, far from there being any divergence in the judicial opinion, a common signature tune. The common golden thread running down and spanning; infusing life, in the various judicial pronouncements is the circumstance surrounding a fact kept in view by the Court while evaluating evidence pertaining to the deceased and the accused being last seen alive followed by the dead body of the deceased being recovered. Indeed, SHARAD with reference to the circumstances surrounding the GUPTA fact of being seen last it has been held that on the facts and circumstances of a particular case the sole Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:10:19 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 63 of 86 evidence of the deceased and the accused being last seen alive was sufficient wherefrom the finger of guilt could unerringly be pointed against the accused, who rendered no satisfactory explanation as to when the accused and the deceased parted company. In cases where the circumstances were such that it could not be held that there was a possibility of an outsider intervening, it was held that in the absence of any further evidence, the highly suspicious conduct of being last seen alive remained a mere suspicion and did not attain the status of proof."
108. The law relating to last seen evidence was summarized in Arvind @ Chhotu (supra) as follows :-
"103. We may summarize the legal position as under:-
(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.
(iv) Proximity of time between the deceased being last SHARAD seen in the company of the accused and the death of the deceased is important and if the time gap is so GUPTA small that the possibility of a third person being the Digitally signed by offender is reasonably ruled out, on the solitary SHARAD GUPTA Date: 2025.05.07 17:10:34 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 64 of 86 circumstance of last-seen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory. The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction."
SHARAD GUPTA 109. Thus it is well settled that although last seen evidence is a type of circumstantial evidence and by itself is a Digitally signed by SHARAD GUPTA weak type of evidence but its effect is to be seen in conjunction Date: 2025.05.07 17:10:41 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 65 of 86 with other circumstances.
110. In the facts of the present case, the prosecution has been able to establish that the deceased was seen in company of the accused in their car and challan was issued to Deepak at Signature Park, Gurugram Haryana, at about 22:43 hours in the night. The dead body was recovered from near Orissa Sadan, Sector-16 B, Dwarka, New Delhi at about 06.30 am on 25.05.2017. Judicial notice can be taken from the fact that the distance between the Signature Towers and Orissa Sadan is about 24 km. The dead body was discovered in the early morning of the very next day. Having regard to the circumstances of the case, the time gap between the issue of challan and the discovery of the dead body is not such as to affect the veracity of the prosecution version in this regard or to suggest involvement of any third person thereby breaking the chain of circumstances.
111. Furthermore, the contention of the accused persons in their statements U/s 313 Cr.P.C. was that the deceased was in fact travelling with them. However, the accused have not been able to show or explain what happened to the deceased after they were challaned by the concerned Traffic Police. It is not the case of the accused that the deceased was in fact dropped off by them somewhere. The accused have remained completely silent regarding the fate of deceased Marshal after the challan was issued. The circumstances pertaining to the deceased after SHARAD GUPTA challan had been issued were within special knowledge of the accused persons themselves and their silence as to what had Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:10:48 +0530 FIR No. 152/2017 PS Dwarka North Page 66 of 86 happened to Marshal after the challan was issued also speaks volumes. To reiterate, the prosecution has been able to establish that the deceased was last seen alive in the company of the accused persons.
Medical Evidence :-
112. As per the prosecution version, PM proceedings of the dead body were initiated by PW-25 W. Inspector Nirmal Sharma on 27.05.2017. The prosecution has examined the concerned doctor PW-13 Dr. Jatin Bodwal who conducted PM proceedings on the deadbody and also gave subsequent opinion regarding the weapon of offence. PW-13 has proved on record post mortem report Ex.PW13/1, as per which the following injuries were observed on the dead body of deceased Marshal :-
"EXTERNAL EXAMINATION: External Injuries
1. Reddish bruise, 3cm x 2cm, was present over left cheek, 3cm below left eye.
2. Reddish bruise, 1cm x 1cm, was present around left eye.
3. Reddish bruise, 0.3cm x 0.2cm, was present on the inner side of upper lip.
4. Contused lacerated wound 0.3cm x 0.2cm x 0.1cm was present on the inner side of lower lip.
5. Transverse ligature mark 10cm, in the form of pressure was present in the front and both sides of neck. In the midline ligature mark was present 8cm below the chin and 10cm above the sternal notch and the width was 2.5cm. On the right side it was present 11cm below SHARAD the mastoid and the width was 2.4cm. On the left side it GUPTA was present 12cm below the mastoid and the width was 2.5cm.Digitally signed by
SHARAD GUPTA 6. Reddish bruise 2cm x 1cm was present on the right Date: 2025.05.07 17:10:59 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 67 of 86 side of neck, 4cm from midline and 5cm from mastoid process.
7. Multiple reddish crecentric shaped abrasions of size about 0.3cm x 0.1cm were present on the left side on the neck in an area of 5cm x 3cm.
113. As per the PM Report Ex.PW13/1, the concerned doctor opined that the cause of death was asphyxia via injury no. 5, which was sufficient to cause death in ordinary course of nature. As per the post mortem report, the injury no. 5 was caused by some ligature material, whereas injury no. 1, 2, 3, 4 6 and 7 were caused by blunt force impact. The PM report observed that the manner of death was homicide.
114. Furthermore, after the post mortem, the doctor handed preserved the blood and viscera, blood in gauze piece and clothes of the deceased which were sealed with the seal of PM DDUH and were handed over to the IO alongwith sample seal.
115. Thus, through the testimony of PW-13 and PM Report and Ex.PW13/1, the prosecution has been able to establish that the manner of death was homicidal and the cause of death was asphyxia due to strangulation which was sufficient to cause death in the ordinary course of nature.
Subsequent opinion :-
116. As per record, the waist belt recovered at the SHARAD instance of accused Pradeep was taken into police possession and GUPTA was sent to the Autopsy Surgeon for subsequent opinion Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:11:08 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 68 of 86 regarding the weapon of offence. As per record, subsequent opinion Ex.PW13/2 was given by Dr. Jatin Bodwal after seeing the PM report and the examination of the waist belt, wherein he opined that injury no. 5 was possible by the examined ligature material i.e. waist belt which was sufficient to cause death in the ordinary course of nature. The print out of the photograph of the ligature material was also enclosed by the doctor alongwith the subsequent opinion as a separate sheet. PW-13 also correctly identified the Belt Ex.P1 during his testimony in the court. Thus, the prosecution has been able to establish that the deceased could have been strangulated by the waist belt recovered at the instance of accused Pradeep from his house.
FSL Examination of the exhibits viz. exhibits lifted from the spot, exhibits seized by the doctor at the time of post mortem, waist belt recovered at the instance of accused Pradeep, exhibits lifted from the Car recovered at the instance of accused Deepak and the clothes recovered at the instance of the accused persons :-
117. As per the prosecution version, the exhibits lifted from the Car bearing no. DL9CAU1246 recovered at the instance of accused Deepak and the Waist Belt recovered at the instance of accused Pradeep were sent for Forensic Examination and as per report, Ex.PW25/K, the genetic material of deceased was found on gauze cloth piece containing blood stains lifted from left side front door of the car and blood stains lifted from body of SHARAD the car left to the driver seat of the car as well as from the belt of GUPTA accused Pradeep.
Digitally signed by SHARAD GUPTADate: 2025.05.07 State Vs. Pradeep and another 17:11:19 +0530 FIR No. 152/2017 PS Dwarka North Page 69 of 86
118. As per the prosecution version, the blood in gauze piece, clothes and other exhibits of the deceased were sealed with the seal of PMDDUH and handed over to the IO alongwith the sample seal after PM of the deceased. As per the prosecution version, the said exhibits were duly seized by the IO PW-25. As per the prosecution version, the blood in gauze of the deceased was seized by the IO vide memo Ex.PW24/E.
119. The circumstances regarding recovery and seizure of Car bearing no. DL9CAU1246 at the instance of accused Deepak and the recovery of the Waist Belt used in the commission of offence at the instance of accused Pradeep have already been discussed in preceding paragraphs of this judgment. It would be appropriate here to refer to the evidence adduced on record regarding the safe custody of the said exhibits before discussing the probative value of the FSL result.
120. To establish the safe custody of the case property, prosecution has interalia examined PW-16 HC Rajeev who was the MHC(M) concerned and had made entries regarding deposit and sending of the case property in the requisite register. PW-16 HC Rajeev has interalia deposed that on 27.05.2017, Inspector Nirmal Sharma had deposited with him in the malkhana four sealed pullandas and personal search of accused Pradeep with him vide entry at Srl. no. 1595 Ex.PW16/B. As per Ex.PW16/B SHARAD i.e. Entry at Srl. no. 1595 in register no. 19, personal search GUPTA articles of accused Pradeep and the clothes recovered at the instance of accused Pradeep, the clothes of deceased Marshal, Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:11:28 +0530 FIR No. 152/2017 PS Dwarka North Page 70 of 86 viscera and blood in gauze piece, sealed with the seal of PMDDU Hospital were deposited in the malkhana by Inspector Nirmal Sharma.
121. Further as per PW-16 HC Rajeev, on 28.05.2017, Inspector Nirmal Sharma had deposited with him two sealed pullandas and he made entries in this regard at Srl. no. 1599 in Register no. 19, Ex.PW16/C. As per Ex.PW16/C i.e. copy of Entry at Srl. no. 1599 in Register no. 19, a Waist Belt recovered at the instance of accused Pradeep and a mobile phone seized from PW Arjun were deposited in the malkhana.
122. Further as per PW-16 HC Rajeev, on 29.05.2017, Inspector Nirmal Sharma had deposited with him a car bearing no. DL9CAU 1246 and a key bunch alongwith personal search articles of accused Deepak and a sealed pulanda of the mobile phone of Ms. Pooja, which were deposited by him vide entry at Srl. no. 1602 in Register no. 19 Ex.PW16/D. A perusal of Ex.PW16/D i.e. Entry at Srl. no. 1602 in Register no. 19 reveals that a Swift Car bearing registration no. DL9CAU1246 recovered from accused Deepak was got deposited in the malkhana by Inspector Sharma. As per Ex.PW16/D, the said vehicle was released on superdari to accused Pradeep S/o Gopi.
123. Furthermore, the prosecution has also examined PW-
SHARAD 14 HC Yogesh who took the exhibits to DDU Hospital for GUPTA subsequent opinion and thereafter, to the FSL concerned. PW-14 HC Yogesh has deposed that on 10.06.2017, he was posted at PS Digitally signed by SHARAD GUPTA Date: 2025.05.07 17:11:38 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 71 of 86 Dwarka North as Constable and on that day, he had taken one sealed parcel duly sealed with the seal of NS to DDU Hospital vide RC no. 113/21/17 Ex.PW14/A. He has also deposed that after examination of the exhibits contained in the sealed parcel, it was again sealed with the seal of PMDDUH and alongwith sample seal was handed over to him by the concerned doctor and he had thereafter deposited the same in the malkhana. He has also deposed that on 13.06.2017, he took the sealed exhibits alongwith FSL form vide RC no. 115/21/17, Ex.PW14/B, RC no. 116/21/17, Ex.PW14/C and RC no. 117/21/17, Ex.PW14/D. PW- 14 and PW-16 have corroborated each other on material particulars and their testimonies inspire the confidence of the court.
124. Pertinently, it was put to PW-16 that he had not obtained signatures of any officers depositing the case property in the malkhana and the officer receiving the same. To my mind when the prosecution has been able to establish that the case property i.e. waist belt was duly sealed at the spot and duly deposited in the malkhana and also that the case property i.e. Car was duly deposited in the malkhana and all relevant endorsements regarding movement of the case property were made in the relevant registers, this assertion of the accused is liable to be rejected. Merely because the signatures of officer depositing or receiving the case property were not obtained in the register no. 19 would not falsify the entries in the relevant SHARAD GUPTA registers. This is especially moreso as perusal of excerpts of relevant registers would show that entries were made therein in Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:11:46 +0530 FIR No. 152/2017 PS Dwarka North Page 72 of 86 the due course of ordinary business and other entries pertaining to other cases were also made in the relevant registers at different points of time.
125. Thus, to my mind, the prosecution has been able to establish safe custody and transit of the case property.
126. It would now be relevant to refer to the FSL report. Prosecution has examined PW-26 Sh. Suresh Kumar Singla, Retired Principal Scientific Officer who had proved on record his report Ex.PW25/K. The relevant portion of the report is reproduced hereinunder for ready reference:-
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '1', '3', '4a', '4b', '4c', '4d', '66', '7', '8', '11' & '12'.
2. Blood could not be detected on exhibit '2', '4e', '5a', 'b','6a','9' & '10'.
DNA EXAMINATION Exhibit '1' (Soil material) from scene of crime, '3' (Gauze cloth piece), '4a' (Shirt), '4b'(T-shirt), *4c" (Jeans pant), '4d' (Lower) of deceased, '6b'(Shirt) of accused Deepak, '7'(Gauze cloth piece) from car No. DL-9C-AC-1246, '8'(Gauze cloth piece) car No. DL-9C-AC-1246,, '11' (Gauze cloth piece) car No. DL-9C-AC-1246 & '12' (Belt) from accused Pradeep were subjected SHARAD to DNA isolation. DNA was isolated from the GUPTA source of exhibits '1', '3', '4a', '4b', '4c', '4d', '6b', Digitally signed by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 73 of 86 17:11:58 +0530 '7', '8' '11' & '12'. DNA profiles were generated from the source of exhibits '3', '4a', '4c', '4d', '7', '8' '11' & '12' by using AmpFl STR Identifiler plus PCR amplification kit whereas the DNA profiles could not be generated from the source of exhibits '1', '4b' & '6b' which may be due to the degradation of the sample or which may be presence of inhibitors. Data was analysed by using Gene Mapper IDx software.
RESULTS OF ANALYSIS Alleles from the source of exhibit '4a' (Shirt), '4c' (Jeans pant) of deceased are accounted in the alleles from the source of exhibit '3'(Blood in gauze piece) of deceased.
Alleles from the source of exhibit '7'(Gauze cloth piece) car No. DL-9C-AC-1246, '8'(Gauze cloth piece car No. DL-9C-AC-1246 & '12' (Belt) from accused Pradeep are accounted in the alleles from the sourc of exhibit '3' (Blood stained gauze cloth piece) of deceased.
127. Thus, through the testimony of PW-26, the prosecution has been able to establish that the genetic material of the deceased was found on from gauze cloth piece containing samples from Car of recovered at the instance of accused Deepak and the waist belt recovered at the instance of accused Pradeep. The FSL result also corroborates the prosecution version.
SHARAD GUPTA State Vs. Pradeep and another Digitally signed by FIR No. 152/2017 PS Dwarka North Page 74 of 86 SHARAD GUPTA Date: 2025.05.07 17:12:07 +0530
128. It is argued on behalf of the accused that the FSL result is manipulated. However, the accused has not been able to bring on record any reason for which the examining doctor would collude with the IO and plant blood of victim on the exhibits. Furthermore, there was no requirement for the investigating agency to go to such extreme lengths and to plant blood of victim on the exhibits as has been alleged by the accused. Furthermore, other than the bald suggestion in this regard no material has been brought on record by the accused in support of the said contention. In totality of circumstances, the argument of the accused regarding tampering of the exhibits i.e. waist belt and gauze piece of exhibits lifted from the car is liable to be rejected.
129. One aspect to be dealt with is that the vehicle number is given as DL9CAC1246 in the FSL result Ex.PW25/K. In this context, perusal of record shows that the car number is correctly mentioned in relevant register no. 19 in entry Ex.PW16/D which records that one car bearing no. DL9CAU1246 alongwith key bunch, personal search of accused Deepak and one sealed pulanda containing mobile phone of PW Pooja was deposited in the malkhana vide entry at Srl. no. 1602. Furthermore, as per the prosecution version, the blood stains were lifted from the said car which were sealed by PW-25 with the seal of NS and were seized vide memo Ex.PW25/D. The SHARAD seizure memo Ex.PW25/D mentions the car number as GUPTA DL9CAU1246. It has come in the testimony of PW-16 that the Digitally signed by said exhibits were deposited in the malkhana vide entry SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:12:16 +0530 FIR No. 152/2017 PS Dwarka North Page 75 of 86 Ex.PW16/E at Srl. no. 1604. Both the said entries mention the correct registration number of the car as DL9CAU1246. Furthermore, as per the FSL report Ex.PW25/K, the pullandas including parcel no. 7 and 8 containing the blood stains lifted from the car and parcel no. 12 containing the belt of the accused Pradeep, were received in the FSL with duly intact seals of NS. The said recitals in the FSL result corroborate the prosecution version that the case property including the belt of accused Pradeep and the exhibits lifted from the car were duly sealed with the NS at the time of their respective seizures vide memos Ex.PW24/L (Belt) and Ex.PW25/D (exhibits from the car) by PW-25 W. Inspector Nirmal Sharma. Furthermore, Ld. Addl. PP for the State has rightly pointed out that the accused persons in their statements U/s 313 Cr.P.C. have admitted the presence of deceased Marshal in their car bearing no. DL9CAU1246 and have also admitted the fact the deceased Marshal was injured. Thus, merely because the registration number of the car is incorrectly mentioned in the FSL result would not falsify its veracity. Furthermore, even if this argument is taken at its face value, the accused have not been able to sufficiently challenge the recovery of genetic material of deceased from the waist belt recovered at the instance of accused Pradeep. The FSL result also corroborates the prosecution version.
Defence of the accused persons :-
SHARAD 130. Now, the defence version can be considered. It is GUPTA strenuously argued on behalf of the accused that the deceased Digitally signed by SHARAD was in fact friend of the accused persons and they had no motive GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:12:24 +0530 FIR No. 152/2017 PS Dwarka North Page 76 of 86 to kill him. This aspect has already been dealt with in preceding paragraphs of this judgment. It is further argued that in fact, PW- 4 has deposed that he was stopped by the deceased from having relations with the wife of accused Pradeep and as such it was PW-4 who in connivance with PW-3 had murdered the deceased and falsely implicated in the accused persons. It is further argued that there was a function in the house of accused persons on 20.05.2017, in which various relatives had attended. It is argued that various defence witnesses have deposed that deceased Marshal had attended the said function and asserted that PW-4 had threatened him not to interfere in his matters. It is argued that through the testimony of defence witnesses, the accused persons have been able to establish their defence.
131. Although the accused persons have strongly relied their defence on the testimonies of the defence witnesses to establish that it was in fact PW-4 Mr. Arjun who in connivance with PW-3 Ms. Pooja wanted to kill deceased Marshal, however, in view of material contradictions in the testimonies of defence witnesses, the accused persons have hopelessly failed in their attempt to prove so for reason mentioned hereinunder.
132. The defence witnesses are sought to be examined on two aspects, firstly that there was an illicit relationship between PW-4 Arjun and PW-3 Ms. Pooja who is the wife of accused Pradeep and secondly that Marshal had told the accused and their SHARAD relatives that PW-4 had threatened him. The first aspect i.e. of GUPTA affair between PW-4 Arjun and PW-3 has already been Digitally signed by SHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 77 of 86 17:12:33 +0530 established on record by prosecution and is also admitted by the accused persons. Now, the defence version that in fact the deceased was under the threat from his brother PW-4 Arjun can be considered.
133. As per the defence version, there was a Dharmik Pooja in the house of accused persons on 20.05.2017 wherein DW-1 Sh. Gopi, DW-2 Sh. Balbir, DW-4 Smt. Geeta and DW-5 Smt. Santosh were present and as per the said witnesses, the deceased Marshal had also come to attend the said function.
However, while the assertion of DW-1, DW-2 and DW-5 is that PW-4 Arjun had threatened deceased Marshal not to interfere in his matters otherwise the result would not be good for him, DW- 4 has not made any allegations in this regard.
134. Furthermore, the assertion of DW-4 and DW-5 is that on 19.05.2017, PW-4 Arjun had come to the house of accused persons and called PW-3 Pooja downstairs and he had told Pooja "tu ghabrana mat, mai Pradeep or Marshal ka kaam bitha doonga'. The said fact of PW-4 coming to the house of accused persons on 19.05.2017 was not put to either PW-3 or PW-4 during their cross-examination. Apparently, the assertions regarding PW-4 coming to the house of the accused persons on 19.05.2017 is an after-thought and a sham defence is sought to be raised by the accused persons in this regard. SHARAD GUPTA 135. Furthermore, as regards the function itself, assertion Digitally signed by of DW-1 Mr. Gopi was that the function had started at about SHARAD GUPTA Date: 2025.05.07 17:12:42 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 78 of 86 03.30 pm and Keertan was over by 7.00 pm and dinner was going on alongwith the Kirtan. He further deposed that around 50-60 persons had attended the Kirtan and tent and halwai were also there. DW-2 asserted that he might have attended the function at 5-6-7 pm i.e. after sun set and there were around 20- 25 persons.
136. Contention of DW-4 Smt. Geeta was that Kirtan was from 3.00 pm till 06.00 pm and dinner started at about 07.00 pm and when Kirtan was going on there were around 25 persons present and they were mostly ladies.
137. Furthermore, while on one hand, DW-4 Smt. Geeta claimed that on 19.05.2017, at about 06.30-07.00 pm, she was present in the house of her brother when Arjun came there and called Pooja downstairs and told her 'tu ghabrana mat mai Pradeep or Marshal ka kaam bitha doonga', DW-5 Smt. Santosh Devi deposed that on 19.05.2017, Arjun came to her house and called Pooja from the ground floor itself on which Pooja came there and Arjun told her 'wo Marshal aur Pradeep ka kaam bandh dega, chinta mat kar, tujhe mera sath dena hoga'. Therefore, while as per PW-5 Smt. Santosh Devi, Arjun had asked Pooja for her support, DW-4 Smt. Geeta is silent on this aspect.
138. As per the defence version, Marshal had stated SHARAD regarding the illicit relations and threat received by him in the GUPTA said function, however, the assertion of DW-1 was that Marshal disclosed the said facts on the ground floor, while the Kirtan was Digitally signed by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:13:05 +0530 FIR No. 152/2017 PS Dwarka North Page 79 of 86 organized outside the house. He further stated that Marshal had informed them while sitting in a room on the ground floor where there were 10-15 persons present. Contention of DW-2 in his cross-examination was that male and female members were sitting separately. He firstly stated that Marshal had come and joined the male group and revealed the said information but he again said that the information was revealed to both male and female groups. He also stated that while kirtan was being done on the ground floor, gents were sitting in a room on the first floor. Thus, there is no consensus between the defence witnesses as to whether deceased Marshal disclosed the facts deposed by them on the ground floor of the house or on the first floor or if he disclosed the said facts only to gents or to ladies also. Furthermore, the defence witnesses have been unable to agree amongst themselves as to where the Kirtan was being held. Furthermore, DW-1 in his cross-examination stated that he had gone to the police and given a written complaint stating that Marshal had come to his house on 20.05.2017, no such complaint has been proved by the defence on record. Ld. Addl. PP for the State to my mind has rightly argued that no video or photographs showing presence of deceased Marshal in the said Pooja has been brought on record by the defence especially in face of assertion of DW-4 in her cross-examination that video of the function was prepared in the mobile.
SHARAD 139. Further contention of the accused persons is that the GUPTA deceased was murdered by PW-4 in connivance with PW-3. In Digitally signed by SHARAD GUPTA this context, as per prosecution version, PW-4 was not in Delhi at Date: 2025.05.07 17:13:15 +0530 State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 80 of 86 the time of the incident. PW-18 Sh. Pawan Singh, Nodal officer, Vodafone Idea has interalia produced on record the CDR of mobile phone of PW-4 Arjun which was proved as Ex.PW18/I. As per the said CDR, location of mobile phone of PW-4 Arjun was of Bihar from 22.05.2017 from about 09.10.09 hours till about 20.12.39 hours on 24.05.2017. Thereafter, his location was of UP East from about 21.38.42 hours on 24.05.2017 till 15.06.10 hours on 25.05.2017 and thereafter his location was of UP West from 15.27.09 hours till 22.47.07 on 25.05.2017. To reiterate, the dead body of deceased Marshal was discovered vide Ex.PW10/A i.e. DD no. 10A dated 25.05.2017 in the morning at about 06.30 am. In these circumstances, the presence of PW-4 Arjun in Delhi at the relevant time is highly doubtful.
140. It is argued on behalf of the accused that during his cross-examination, PW-4 admitted that he was at his house at about 04.00 pm on 24.05.2017. The relevant portion of cross- examination of PW-4 is reproduced hereinunder :-
"It is correct that I cannot recollect that where I was present on 24.05.2017 at about 4.00 pm. I cannot recollect as to whether on 24.05.2017 at about 4.00 pm, I was present at my house alongwith my mother who had prepared food for me which I enjoyed."
141. The stand of PW-4 even in his examination in chief was that he had gone to Patna when he received information from SHARAD his mother that his deceased brother was missing. His assertion GUPTA was that he had returned to Delhi in the intervening night of 25- Digitally signed by 26.05.2017. I am unable to agree with the interpretation given by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:13:22 +0530 FIR No. 152/2017 PS Dwarka North Page 81 of 86 Ld. Defence Counsel to the assertions in cross-examination of PW-4 recapitulated above. To my mind, there is nothing in the said cross-examination to infere that PW-4 was in fact present in Delhi at the relevant time or that he in fact had murdered his brother.
Other arguments addressed on behalf of the accused persons :-
142. It is argued on behalf of the accused that the prosecution version is liable to be rejected as there is discrepancy in the time since death. It is argued that as per PM report Ex.PW13/1, the time since death has been given as approximately 2-3 days prior to the post mortem examination on
27.05.2017. It is further argued that as per PM report, about 200 ml of semi digested food was found in the stomach of the deceased. It is thus argued that death would have happened in early morning of 24.05.2017 on the ground that the deceased ate lastly about 4-6 hours prior to his death and around five hours are taken for food to reach semi digested stage.
143. In this context, the death of deceased had happened in the intervening night of 24-25.05.2017 and his body was discovered by PW-11 HC Pradeep at about 06.30 am on 25.05.2017. As per prosecution version, the said information was given in the PS concerned and was duly recorded by PW-10 vide DD no. 10 A dated 25.05.2017. It is pertinent to observe that the SHARAD post mortem report gives the approximate time since death and GUPTA not the exact time since death.
Digitally signed by SHARAD GUPTA Date: 2025.05.07State Vs. Pradeep and another 17:13:31 +0530 FIR No. 152/2017 PS Dwarka North Page 82 of 86
144. In a post-mortem examination, the estimation of time since death is typically an approximation, not a precise calculation. Factors like body temperature, muscle stiffness (rigor mortis), and the presence of decomposition can provide clues about the post-mortem interval (PMI), but these changes are influenced by environmental conditions and individual variations. In these circumstances, the assertion in the PM report that death had happened approximately, 2-3 days prior to post mortem cannot be taken to imply that the deceased was killed in the early morning of 24.05.2017 as argued by the accused. This argument of the accused is thus liable to be rejected.
145. It is argued on behalf of the accused that the entire investigation in this case was conducted by PW-24 SI Rajender as most of the documents are in his handwriting. However, merely because some of the documents are in the handwriting of PW-24 would not imply that in fact he had conducted the investigation of this case. Prosecution has examined PW-25 Women Inspector Nirmal Sharma who has categorically stated that she had infact conducted the investigation in this case. Pertinently, during her cross-examination, PW-25 retired W. Inspector Nirmal Sharma stated that she was having a problem in her hand due to which various documents were scribed by PW-24 SI Rajender. The tone and tenor of examination of PW-25 would SHARAD show that the entire investigation was conducted by her. This GUPTA argument of the accused is thus contrary to the record and thus, Digitally signed by SHARAD GUPTA liable to be rejected.
Date: 2025.05.07 17:13:42 +0530State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 83 of 86
146. It is argued on behalf of the accused that in fact the investigating agency itself did not suspect accused Pradeep and had not arrested him on 26.05.2017 but was only let off after interrogation. To my mind, this argument of the accused is neither here nor there.
147. In this context, PW-25 in her cross-examination has stated that on 26.05.2017, she had not found any substantial evidence against accused Pradeep after due interrogation but she volunteered that he was still a suspect in this case. As per PW-24 and PW-25, the accused was arrested on 27.05.2017 after post mortem proceedings of the dead body had been conducted. It is a matter of record that as per post mortem, the manner of death was opined as homicidal. PW-25 has specifically stated that accused Pradeep was arrested on 27.05.2017 after bringing him from his house to the police station and after sustained interrogation. The arrest of the accused in any case is the prerogative of the investigating agency. Merely because the accused was not arrested on 26.05.2017 would not imply that he is infact innocent.
148. In view of the aforesaid detailed discussion, after giving due thought to the aforesaid rival submissions and perusing the entire material placed on record and keeping in view the aforesaid law points, I have come to the considered opinion that the prosecution has been able to form and prove an SHARAD unbreakable chain of evidence against the accused persons so as GUPTA to connect them with the murder of deceased Marshal.
Digitally signed bySHARAD GUPTA State Vs. Pradeep and another Date: 2025.05.07 FIR No. 152/2017 PS Dwarka North Page 84 of 86 17:13:48 +0530 Offence punishable U/s 201 IPC
149. In order to prove the offence punishable U/s 201 IPC, the prosecution was required to establish that both the accused in furtherance of their common intention had got washed blood stained clothes of accused Pradeep with intention to cause disappearance of the evidence of the offence of commission of murder.
150. In this context, it is relevant to note here that though, it stands proved on record through the testimonies of PW-24 and PW-25 that the clothes allegedly worn by accused Pradeep and Deepak were recovered at their instance vide memos Ex.PW24/K (Pradeep) and Ex.PW24/U (Deepak), however, as per the FSL report Ex.PW25/K, no genetic material of the deceased was found on the clothes recovered at the instance of the accused persons. It is the case of prosecution that the clothes of accused Pradeep were washed by PW-3 Pooja on the asking of accused Pradeep, however, PW-3 Ms. Pooja has not supported the case of prosecution with regard to the fact that she had washed the blood stained clothes of accused Pradeep. Therefore, except the disclosure statements of the accused persons, there is nothing on record to prove that the accused persons had got washed the clothes worn by accused Pradeep with intention to cause disappearance of evidence of commission of offence.
SHARAD GUPTA 151. Therefore, this court is of the opinion that the Digitally signed prosecution has not been able to prove the offence punishable by SHARAD GUPTA Date: 2025.05.07 State Vs. Pradeep and another 17:14:02 +0530 FIR No. 152/2017 PS Dwarka North Page 85 of 86 U/s 201/34 IPC against the accused persons.
CONCLUSION
152. In view of the foregoing discussion, accused Pradeep and Deepak are convicted for the offence punishable U/s 302 read with Section 34 IPC. Accused Pradeep and Deepak are, however, acquitted for the offence punishable U/s 201 read with Section 34 IPC.
153. Let the convicts be heard separately on the point of sentence.
Digitally signed by SHARAD Announced in the open Court on SHARAD GUPTA 7th May, 2025. GUPTA Date: 2025.05.07 17:14:13 +0530 (SHARAD GUPTA)
Additional Sessions Judge (Fast Track Court) South West District, Dwarka Courts/New Delhi.
It is certified that this Judgment contains eighty six (86) pages and each page bears my initials / signatures.
Digitally signed by SHARAD SHARAD GUPTA GUPTA
Date: 2025.05.07 17:14:19 +0530
(SHARAD GUPTA)
Additional Sessions Judge (Fast Track Court) South West District, Dwarka Courts/New Delhi.
State Vs. Pradeep and another FIR No. 152/2017 PS Dwarka North Page 86 of 86