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Delhi District Court
State vs Avdhesh on 29 April, 2025
IN THE COURT OF MS. VANDANA JAIN:
ADDL. SESSIONS JUDGE-03/SPECIAL JUDGE
(COMPANIES ACT), DWARKA COURTS, NEW DELHI.
CNR No. : DLSW01-011083-2021
SC No. : 726/2021
State Vs. : Avdhesh
FIR No. : 911/2020
U/s. : 302 IPC
P.S. : Uttam Nagar
1. CNR No. of the Case : DLSW01-011083-2021
2. Date of commission of offence : 14.11.2020
3. Date of institution of the case : 10.02.2021
4. Date of committal to Sessions Court : 12.11.2021
5. Name of the complainant : Ankit Kumar
6. Name of accused, parentage &
address : Avdhesh
S/o Sh. Dilip Kumar
Singh,
R/o G-9, Om Vihar,
Phase-V, Uttam Nagar,
Dwarka, Delhi.
7. Offences complained of in
chargesheet : 302 IPC
8. Offences under which charges
were framed : 302 IPC
9. Plea of the accused : Pleaded not guilty
10. Date on which arguments heard : 24.04.2025
11. Date of final order : 29.04.2025
12. Final order : Acquitted
SC No.726/2021 Page No. 1 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
JUDGMENT
Facts
1. The investigation of the present case was set into motion
on receiving DD No.70A dated 14.11.2020 wherein it was
recorded ‘Bhai ne pita ko jaan se maar diya’. The said DD was
marked to SI Vipin Malik who alongwith HC Gopal went to spot
i.e. G-9, Om Vihar, Phase-V, Uttam Nagar, Delhi where Beat
Staff was already present.
2. SI Vipin Malik recorded the statement of complainant Sh.
Ankit Kumar wherein he stated that he has one sister Rimjhim
and one brother Avdhesh i.e. accused. He is residing in a rented
accommodation and his brother Avdhesh alongwith their father
(deceased) was residing separately at G-9, Om Vihar, Phase-V,
Uttam Nagar. Four-five days before the date of incident,
accused took his family members to Bihar and left them there
and he alone came back to Delhi. Accused is a drunkard and
used to quarrel with his father on account of asking money to
drink liquor. A day before the incident, when his father came to
the house of his sister to have food, accused Avdhesh also came
there and quarreled with his father and repeatedly asked for
money for drinking liquor. Thereafter, accused left from there.
Since his father used to come to the house of his sister daily to
have food, on the date of incident i.e. on 14.11.2020 when his
father did not come to have food at his sister’s house, he
(complainant) went to call his father where he found that main
gate of house was slightly closed. When he opened the main gate
of the house of his father, his brother i.e. accused Avdhesh came
SC No.726/2021 Page No. 2 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
from inside in perplexed condition and fled away from there
saying “Maine papa ko maar diya”. When he entered the house,
he found that Almirah was lying opened and all the household
articles were scattered in the room. His father was lying on the
bed having a blanket on him. When he took away the blanket, he
found that one blanket was tied around the face of his father. He
untied the blanket from the face of his father and he found that
mouth of his father was tied with gamchha and neck of his father
was tied with a chunni. When he untied the gamchha and chunni
from the face and neck his father, he found that blood was oozing
out from the nose of his father. His father was not responding
and he was already dead. He called the police on 100 number.
3. On the basis of above statement, SI Vipin Malik prepared
the rukka and got the FIR registered against the accused for the
offence under Section 302 IPC. Crime team was called and spot
was got inspected. After registration of FIR, further investigation
of the case was marked to Insp. Harpal Singh. Dead body of
deceased Dilip Kumar was shifted to hospital. Insp. Harpal Singh
prepared the site plan at the instance of complainant and seized
the exhibits i.e. blood stained chunni, gamchha, blanket, blood on
cotton piece, blood stained plywood and control of plywood after
sealing them in cloth pullandas. Insp. Harpal Singh collected the
MLC of deceased Gaurav and also called the crime team at the
spot and got the spot inspected. During further investigation, IO
recorded the statement of Ms.Rimjhim, daughter of deceased.
Accused was arrested at the instance of secret informer and he
made disclosure statement wherein he disclosed that he hit twice
SC No.726/2021 Page No. 3 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
on the head of his father with sil-batta. Accused also got
recovered the said sil-batta from the nearby vacant plot which
was seized. Exhibits were sent to FSL and after completion of
investigation, chargesheet was filed against the accused for
facing trial for the offence punishable under Section 302 IPC.
4. After compliance of Section 207/208 Cr.P.C, the case was
committed to the Court of Sessions.
5. During the course of trial, supplementary chargesheet in
respect of FSL report qua the exhibits sent to FSL was also filed,
copy of which was duly supplied to accused.
Charges
6. Charge under Section 302 IPC was framed against accused
on 15.03.2022 to which he pleaded not guilty and claimed trial.
Prosecution Evidence
7. Prosecution cited as many as 21 witnesses out of which 5
witnesses have been examined. Since accused admitted FIR
no.911/2020; Certificate under Section 65B Evidence Act; GD
No.70A dated 14.11.2020l; scaled site plan of the spot; scene of
crime report dated 14.11.2020 with photographs and certificate
under Section 65B of Evidence Act; PM Repot No.1861/2020 of
deceased Dilip Kumar; Death report of deceased Dilip Kumar;
MLC of deceased Dilip Kumar of DDU Hospital dated
14.11.2020; subsequent opinion of the weapon of offence dated
14.11.2020 and CDR & CAF of mobile No.9693791682 and
SC No.726/2021 Page No. 4 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
8252819536 as Ex.A-1 to Ex.A-10, the witnesses pertaining to
aforesaid documents were dropped in view of the statement of
the accused recorded under Section 294 CrPC.
8. Testimony of prosecution witnesses who have been
examined is reproduced hereinunder:-
9. PW-1 Sh. Ankit Kumar is the complainant. He deposed as
under:
” I was residing with my sister for about one year
prior to the incident. I was working in a factory.
We are two brothers. My elder brother is Avdhesh
who is accused in present case is present today in
Court (Correctly identified). I have one sister Rim
Jhim. My elder brother Avdhesh who was residing
along with his family and my father at G-9, Om
Vihar, Phase-V, 40 Foota Road, Uttam Nagar.
There was continuous quarrel between my father
and accused Avdhesh for money. Accused Avdhesh
is habitual drinker and he used to demand money
from my father. On 13.11.2020 after doing my
night duty, I came back to my home i.e. the house
of my sister Rim Jhim. I received a call of my
cousin and he asked me to go to village. After
some time, my brother Avdhesh came there. I
demanded Rs.1,000/- from accused as I had to go
to village. Accused had given me assurance to
arrange the money and thereafter, left the spot.
After sometime, he came back and gave me
Rs.1,000/-. Thereafter, he left. Around 12:00 PM –
12:30 PM, accused again came to our house, then,
my sister asked him about my father. Accused
informed that father had gone for work. Avdhesh
again left the home and came back after sometime
and I asked him about my father. Then, he replied
that he don’t know about whereabouts of my
father. When, I insisted to know about my father
then, accused starts crying. He also told me that his
SC No.726/2021 Page No. 5 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
mobile phone and money has been stolen by one
Vicky. I went to the house where my father was
residing with accused. The room was found
locked. My niece namely Lacho was also with me
at that time. Thereafter, I broke the lock of room as
sometime, I also used to lock from outside while
my father used to sleep inside. So that I thought
my father would be sleeping inside the room. I and
my niece went inside the room and found scattered
the household items. I noticed that my father was
sleeping. I asked my niece to clear the room and
when I removed the bed sheet from my father. I
notice some cloth was found folded on his face. I
also noticed one Chunni surrounded the neck of
my father with a knot. I removed the cloth from
the face and also remove the Chunni from the neck
and felt that body of my father was cold. I raised
alarm after going outside the room. Many of the
neighbours came inside the room and on their
asking, I made a call to the police and informed
that my father had been murdered. Thereafter, I
made a call to my sister and informed her about
the incident. My sister came at spot immediately.
After sometime, police also reached there. Police
asked me as who had committed the crime. I told
them I do not know anything and informed them
that my brother Avdhesh was residing with my
father. Police also inquired me about my brother
and I told that I was not aware about the
whereabouts of my brother. My sister informed the
police officials that Avdhesh would be at her
residence. But Avdhesh had already fled away
from the house. I was taken to the PS by Vipin Sir.
I do not know anything else about the case.
Whatever I had seen, I have deposed today in
Court.”
Since PW-1 did not support the prosecution version, he
was cross examined at length by Ld. Addl. PP for the State,
however, he did not change his statement and did not state that
accused had committed the offence.
SC No.726/2021 Page No. 6 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
PW-1 was duly cross examined by learned counsel for the
accused.
10. PW-2 Smt. Rimjhim is daughter of deceased. She
deposed as under:
“I am working in a private company. My husband
is a plumber. Name of my younger brother is Ankit
and name of my elder brother is Andhesh. Avdhesh
is present in Court today as accused (Correctly
identified). My father (since deceased) was
residing with his son Avdhesh and daughter-in-law
Bharti Devi at G-9, Om Vihar, Phase-V, Uttam
Nagar. My father was a vegetable vendor.
When my father did not come for lunch on
the day of Dhanteras in year 2020, I asked my
brother Ankit to go to the residence of my father.
Date I do not remember. Ankit went to the
residence of my father and told me that my father
had already expired. I do not know anything else
about the case.”
Since PW-2 did not support the prosecution version, she
was cross examined at length by Ld. Addl. PP for the State,
however, she did not change her version and did not state
anything incriminating against the accused.
PW-2 was duly cross examined by learned counsel for the
accused.
11. PW3 SI Vipin Malik deposed as under:
” On 14.11.2020, I was posted at PS Uttam Nagar
as SI. On that day, I received DD No. 70A with
regard to one brother had taken had murdered his
father. Thereafter, I along with HC Gopal reached
at the spot i.e. G-9, Om Vihar, Phase-V, Uttam
Nagar, New Delhi. There I met complainant AnkitSC No.726/2021 Page No. 7 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
Kumar who told me that his brother Avdhesh
Kumar had murdered his father and ran away from
the house. Thereafter, I along with HC Gopal went
inside the house and saw that body was lying on
the single bed available in the room and the
belongings of the room were scattered. Almira of
the room was opened. The face of the deceased
was towards the south direction and legs were
towards the north direction and blood can be seen
on his nose and blood was also lying on the bed.
One cloth/Gamcha, one Chunni and one blanket
was lying on the bed. All of them were blood
stained and were lying near the body.
I called the crime team at the spot. Crime
team reached at the spot and photographs of the
spot were taken by crime team official. Spot was
thoroughly inspected by officials of crime team.
Body of deceased was sent to DDU Hospital
through Ct. Karatara Ram in a private ambulance.
Thereafter, I recorded statement of complainant
Ankit which was attested by me at point B.
In the meanwhile, Insp. Harpal reached at
the spot. I prepared the Tehrir Ex.PW3/A bears
my signature at point A and send HC Gopal to the
PS along with original Tehrir for registration of
FIR. Further investigation of present case was
conducted by IO/Insp. Harpal. Site plan was
prepared at the instance of complainant. In the
meanwhile, HC Gopal came at spot along with
copy of FIR and original Tehrir and certificate u/s
65-B of I.E. Act. Said documents were handed
over to IO. Blood stained Chunni, cloth/Gamcha
and blanket were seized by IO vide seizure memo
already Ex.PW1/B, Ex.PW1/C and Ex.PW1/D
respectively all bearing my signatures at point B
respectively. The complainant had told in his
statement that the said Chunni was used to
strangulate his deceased father and he has untied
the knot. Complainant had also told that the
cloth/Gamcha was tied on the face of his fatherSC No.726/2021 Page No. 8 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
and he had untied the same. Complainant also
stated that the blanket was covered on the face of
his deceased father. The blood which was lying on
the bed of the deceased was seized vide seizure
memo already Ex.PW1/E bearing my signature at
point B, with the help of cotton piece and the said
cotton piece was kept in a plastic box and sealed
with the seal of ‘HS’. Blood stained piece of
plywood and another piece of plywood without
blood was seized vide seizure memo already
Ex.PW1/F bearing my signature at point B.
Thereafter, my statement under Section 161
Cr.P.C. was recorded by IO. The case properties
were deposited in the Malkhana.
On 15.11.2020, IO/Insp. Harpal Singh
received information from a secret informer that
accused Avdhesh who had killed his father can be
apprehended near Green Vatika, Nawada.
Thereafter, I along with HC Gopal and IO/Insp.
Harpal went to the spot. There we saw accused
Avdhesh and IO arrested and personally searched
the accused vide memos Ex.PW3/B and
Ex.PW3/C respectively both bearing my signatures
at point A respectively. IO also recorded disclosure
statement of accused in my presence vide memo
Ex.PW3/D bearing my signature at point A.
Accused took us to the spot and pointing out
memo was prepared at the instance of accused
same is now Ex.PW3/E bearing my signature at
point A. Accused told us that he had used Silbatta
to hit his father on head and other parts of the
body. He got the same recovered from the empty
plot just adjacent to his house and IO seized the
same vide seizure memo Ex.PW3/F bearing my
signature at point A. Accused was sent to DDU
Hospital for medical examination, where his
clothes, nail clippings, blood sample were seized
by the doctor. IO sealed the same along with
sample seal of CMO DDU Hospital and seized the
same vide seizure memo Ex.PW3/G bearing mySC No.726/2021 Page No. 9 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
signature at point A. Postmortem of deceased was
got conducted and doctor seized the clothes and
blood on gauge piece. The said things were also
seized by IO along with two sample seals vide
seizure memo Ex.PW3/H bearing my signature at
point A. Seal was handed over to me by IO vide
seal handed over memo Ex.PW3/I bearing my
signature at point A. Thereafter, my supplementary
statement statement was recorded by IO. Accused
was sent to Tihar Jail.
Accused is present in the Court today
(Correctly identified).
I can identified the case property, if shown
to me.
At this stage, MHC(M) has produced case
property i.e. one yellow envelope bearing the seal
of FSL S.Nn DELHI having serial no.1 written on
it. Same is opened and one Chunni is taken out and
shown to witness. Witness correctly identified the
same. Said Chunni is now Ex.P1.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.2 written on it. Same is
opened and one Gamcha having brownish stains is
taken out and shown to witness. Witness correctly
identified the same. Said Gamcha is now Ex.P2.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.3 written on it. Same is
opened and one Blanket is taken out and shown to
witness. Witness correctly identified the same.
Said Blanket is now Ex.P3.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.4 written on it. Same is
opened and one plastic box containing blood on
cotton having brownish stains is taken out and
shown to witness. Witness correctly identified the
SC No.726/2021 Page No. 10 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
same. Said blood on cotton is now Ex.P4.
MHC(M) has produced case property i.e.
one plywood having brownish stains duly covered
with the help of white cloth and sealed with the
seal of FSL S.Nn DELHI having serial no.5
written on it. Same is opened and shown to
witness. Witness correctly identified the same.
Said plywood is now Ex.P5.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.6 written on it. Same is
opened and one piece of stone having brownish
stains is taken out and shown to witness. Witness
correctly identified the same. Said piece of stone is
now Ex.P6.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.7 written on it. Same is
opened and one shirt, pant/trouser, one underwear
are taken out and shown to witness. Witness
correctly identified the same. Same are now Ex.P7,
Ex.P8 and Ex.P9 respectively.
MHC(M) has produced case property i.e.
one plywood described as control plywood duly
covered with the help of white cloth and sealed
with the seal of FSL S.Nn DELHI having serial
no.10 written on it. Same is opened and shown to
witness. Witness correctly identified the same.
Said plywood is now Ex.P10.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.11 written on it. Same is
opened and one plastic box having blood on gauge
piece is taken out and shown to witness. Witness
correctly identified the same. Same is now Ex.P11.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.9 written on it. Same is
SC No.726/2021 Page No. 11 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
opened and one plastic box having nail clippings
of the accused is taken out and shown to witness.
Witness correctly identified the same. Same is now
Ex.P12.
MHC(M) has produced case property i.e.
one yellow envelope bearing the seal of FSL S.Nn
DELHI having serial no.8 written on it. Same is
opened and clothes of the accused are taken out
and shown to witness. Witness correctly identified
the same. Same is now Ex.P13, Ex.P14, Ex.PW15,
Ex.P16 and Ex.P17 respectively.”
PW-3 was duly cross examined by ld. counsel for the
accused.
12. PW4 Insp. Harpal Singh deposed as under:
” On 14.11.2020, I was posted at PS Uttam Nagar
as Inspector (Investigation). On that day, I received
information from SHO that a murder had taken
place. Thereafter, I went to the spot i.e. G-9, Om
Vihar, Phase-V, Uttam Nagar, New Delhi. There I
met SI Vipin Malik, HC Gopal and Complainant
Ankit Kumar. SI Vipin Malik prepared the Tehrir
already Ex.PW3/A and send HC Gopal to the PS
along with original Tehrir for registration of FIR.
Thereafter, I carried further investigation of
present case. Site plan was prepared by me at the
instance of complainant, same is now Ex.PW4/A
bearing my signature at point A. In the meanwhile,
HC Gopal came at spot along with copy of FIR,
original Tehrir and certificate u/s 65-B of I.E. Act
and handed over the same to me. Blood stained
Chunni, cloth/Gamcha and blanket were seized by
me vide seizure memo already Ex.PW1/B,
Ex.PW1/C and Ex.PW1/D respectively all bearing
my signatures at point C respectively. The
complainant had told in his statement that the said
Chunni was seen by him tied on the neck of the
deceased and he had untied the knot. ComplainantSC No.726/2021 Page No. 12 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
had also told that the cloth/Gamcha was tied on the
face of his father and he had untied the same.
Complainant also stated that the blanket was
covered on the face of his deceased father. The
blood which was lying on the bed of the deceased
was seized by me vide seizure memo already
Ex.PW1/E bearing my signature at point C, with
the help of cotton piece and the said cotton piece
was kept in a plastic box and sealed with the seal
of ‘HS’. Blood stained piece of plywood and
another piece of plywood without blood was
seized by me vide seizure memo already
Ex.PW1/F bearing my signature at point C.
Supplementary statement of complainant with
regard to site plan and statement of daughter of
deceased Rimjhim were recorded by me. We tried
to search for the accused but he was not traceable.
Thereafter, I along with staff came back to PS. I
recorded statement under Section 161 Cr.P.C. of SI
Vipin Malik and HC Gopal. The case properties
were deposited in the Malkhana. I also recorded
statement of crime team.
On 14.11.2020 at about 11:30 PM, I received
information from a secret informer that accused
Avdhesh who had killed his father can be
apprehended near Green Vatika, Nawada.
Thereafter, I along with HC Gopal and SI Vipin
Malik went to the spot. There we saw accused
Avdhesh and I arrested and personally searched the
accused vide memos already Ex.PW3/B and
Ex.PW3/C respectively both bearing my signatures
at point B respectively. I also recorded disclosure
statement of accused vide memo Ex.PW3/D
bearing my signature at point B.
Accused took us to the spot and pointing out
memo was prepared at the instance of accused
same is already Ex.PW3/E bearing my signature at
point B. Accused told us that he had used Silbatta
to hit his father on head and other parts of the
body. He got the same recovered from the emptySC No.726/2021 Page No. 13 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
plot just adjacent to his house and I seized the
same vide seizure memo already Ex.PW3/F
bearing my signature at point B. Accused was sent
to DDU Hospital for medical examination, where
his clothes, nail clippings, blood sample were
seized by the doctor. I sealed the same along with
sample seal of CMO DDU Hospital and seized the
same vide seizure memo already Ex.PW3/G
bearing my signature at point B. Postmortem of
deceased was got conducted and doctor seized the
clothes and blood on gauge piece. The said things
were also seized by me along with two sample
seals vide seizure memo already Ex.PW3/H
bearing my signature at point B. Seal was handed
over to SI Vipin Malik by me vide seal handed
over memo already Ex.PW3/I bearing my
signature at point B. Thereafter, I recorded
supplementary statement statement of SI Vipin
Malik. Accused was sent to Tihar Jail. The dead
body of the deceased was handed over to
complainant. Statement of the other witnesses
under Section 161 Cr.P.C. were also recorded by
me.
I collected the CDR of the mobile phones of
complainant Ankit, his sister Rimjhim and his
sister-in-law. Scaled site plan was prepared by
draftsman at my instance. I took the subsequent
opinion from concerned doctor that whether the
injuries inflicted upon the body of deceased could
have been caused with the help of Silbatta. The
doctor opined in affirmative. The application in
this regard is Ex.PW4/B bearing my signature at
point A.
Accused is present in the Court today
(Correctly identified).
I can identified the case property, if shown
to me.
Case property is already exhibited as Ex.P1
to P17.
SC No.726/2021 Page No. 14 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
The case property was sent to FSL. I
prepared the charge-sheet, supplementary charge-
sheet and filed the same before the Court.”
PW-4 was duly cross examined by ld. counsel for the
accused.
13. PW5 Ms. Seema Nain, Asstt. Director (Biology), RFSL,
Chanakya Puri deposed as under:
“On 16.12.2020 I was posted at FSL, Rohini as
Asstt. Director (Biology). On that day, my office
received a letter No.1976/SHO/Uttam Nagar in
connection with case FIR No.911/2020 PS Uttam
Nagar. 12 sealed parcels were received in the
office of Director, FSL. Same were marked to me
for Biological and DNA Examination.
Seals on the parcels were intact and were
tallied with the sample seals provided in the
forwarding letter. I opened the said 12 sealed
parcels and examined the exhibits. On biological
examination, blood was detected on Exhibits 1, 2,
3, 4, 5, 6, 7a, 7b, 7c, 9, 11 and 12. The exhibits
were subjected to DNA Isolation. DNA was
isolated from the source of exhibits 1, 2, 3, 4, 5, 6,
7a, 7b, 7c, 9, 11 and 12. Globalfiler PCR
amplification (STR) kit was used for each of the
exhibits and data was analysed by Gene Mapper
IDx Software.
On conclusion :
(i) DNA profile generated from the source of
exhibit 11 (blood gauze of deceased) is matching
with the DNA profile generated from the source of
Exhibits 2 (gamchha from SOC), 3 (blanket from
SOC), 4 (swab from SOC), 5 (plywood from
SOC), 6 (silbatta from SOC), 7a (shirt of
deceased), 7b & 7c (pant and underwear ofSC No.726/2021 Page No. 15 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
deceased).
(ii) DNA profile generated from the source of
exhibit 11 (blood gauze of deceased) is not
matching with the DNA profile generated from the
source of Exhibits 9 (nail clippings of accused).
After the examination, remnants of the
exhibits were sealed with the seal of FSL S.Nn
DELHI. I prepared my detailed report bearing
no.SFSL DLH/10469/BIO/2259/20 BIO
No.2360/2020 dated 25.03.2022. The same
alongwith allelic data is Ex.PW5/A (Colly)
(running into 5 pages) bearing my signature at
point-A on each page.”
PW-5 was duly cross examined by ld. counsel for the
accused.
14. Thereafter, prosecution evidence was closed.
Statement under Section 313 CrPC and Defence Evidence
15. Statement under Section 313 CrPC of the accused was
recorded wherein all the incriminating evidence which came on
record was put to the accused which he denied and stated that he
has been falsely implicated in the present case by the police.
16. Accused did not lead any evidence in his defence.
Arguments on behalf of parties
17. I have heard the arguments on behalf of Ld. Addl. PP for
the State and ld. counsel for accused and perused the record
carefully.
SC No.726/2021 Page No. 16 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
18. Sh. Vijay Kumar, ld. counsel for accused had submitted
that nothing incriminating has come on record in evidence which
would connect the accused with the offence for which he has
been charged. Both the material public witnesses i.e. PW-1 the
complainant, who is son of deceased and PW-2, who is daughter
of deceased, cited by the prosecution to prove its case have
turned hostile and have not supported the case of prosecution.
PW-1 and PW-2 did not state anything incriminating against the
accused and did not state that the accused had committed the
murder of their father and therefore, the accused be acquitted.
19. On the other hand, ld. Addl. PP for the State has submitted
that the prosecution has duly proved its case beyond reasonable
doubt and hence accused be convicted for the offence for which
he has been charged.
Analyisis, Reasoning & Findings
20. It is a cardinal principle of criminal jurisprudence that the
prosecution has to prove its case beyond reasonable doubt.
Prosecution is under legal obligation to prove each and every
ingredients of the offence beyond reasonable doubt. Reliance in
this regard is placed on Nasir Sikander Shaikh vs. State of
Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State
of Punjab (SC) 1996 (1) RCR 465 .
21. Accused Avdhesh has been charged for the offence under
Section 302 IPC.
22. The present case is based on circumstantial evidence as
SC No.726/2021 Page No. 17 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
there is no direct evidence to connect accused with crime. Before
proceeding with the merits of the case, let us dwell on the law
pertaining to the circumstantial evidence. In Sharad Birdhi Chand
Sarda vs. State of Maharashtra 1984 AIR 1622 / 1985 SCR (1)
88, it was held that :
“3:3. Before a case against an accused vesting on
circumstantial evidence can be said to be fully
established the following conditions must be fulfilled
as laid down in Hanumat’s v. State of M.P. [1953] SCR
1091. [163C]
1. The circumstances from which the conclusion of
guilt is to be drawn should be fully established; [163D]
2. The facts so established should be consistent with
the hypothesis of guilt and the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature
and tendency; [163G]
4. They should exclude every possible hypothesis
except the one to be proved; and [163H]
5. There must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused. [164B]
These five golden principles constitute the panchsheel
of the proof of a case based on circumstantial evidence
and in the absence of a corpus deliciti. [164B].
It was further held in aforesaid case :
3:4. The cardinal principle of criminal jurisprudence is
that a case can be said to be proved only when there is
certain and explicit evidence and no pure moral
conviction. [164F]”
23. In Musheer Khan @ Badshah Khan v. State of Madhya
Pradesh dated 28.01.2010, Hon’ble Supreme Court of India while
discussing the nature of circumstantial evidence and the burden
SC No.726/2021 Page No. 18 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
of proof of prosecution stated as under:-
“39. In a case of circumstantial evidence, one must
look for complete chain of circumstances and not on
snapped and scattered links which do not make a
complete sequence. This Court finds that this case is
entirely based on circumstantial evidence. While
appreciating circumstantial evidence, the Court must
adopt a cautious approach as circumstantial evidence
is “inferential evidence” and proof in such a case is
derivable by inference from circumstances.”
24. The case of the prosecution as already discussed is based
on the circumstantial evidence and the circumstances on which
the prosecution has heavily relied in order to prove the guilt of
the accused are as under :-
(i) Motive. (ii) Last seen theory and extra judicial confession.
(iii) Arrest of accused and recovery of sil-batta (weapon of
offence) at the instance of accused.
(iv) Postmortem report of deceased. (v) Subsequent opinion taken on the weapon of offence i.e.
sil-batta and scientific evidence (DNA analysis on the
weapon of offence and blood sample of deceased and
remaining DNA analysis.
(i) Motive
25. Before coming to the merits of the case, it is important to
discuss the law propounded in various judgments by the Higher
Courts in respect of motive and its importance in cases of
circumstantial evidence.
26. In the case Sheo Shankar Singh vs. State of Jharkhand
(2011) 3 SCC 654, the Hon’ble Supreme Court had observed as
under:
SC No.726/2021 Page No. 19 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
“13. The legal position regarding proof of motive as
an essential requirement for bringing home the guilt
of the accused is fairly well settled by a long line of
decisions of this Court. These decisions have made a
clear distinction between cases where prosecution
relies upon circumstantial evidence on the one hand
and those where it relies upon the testimony of eye
witnesses on the other. In the former category of
cases proof of motive is given the importance it
deserves, for proof of a motive itself constitutes a
link in the chain of circumstances upon which the
prosecution may rely. Proof of motive, however,
recedes into the background in cases where the
prosecution relies upon an eye-witness account of
the occurrence. That is because if the court upon a
proper appraisal of the deposition of the eye-
witnesses comes to the conclusion that the version
given by them is credible, absence of evidence to
prove the motive is rendered inconsequential.
Conversely even if prosecution succeeds in
establishing a strong motive for the commission of
the offence, but the evidence of the eye-witnesses is
found unreliable or unworthy of credit, existence of
a motive does not by itself provide a safe basis for
convicting the accused. That does not, however,
mean that proof of motive even in a case which rests
on an eye-witness account does not lend strength to
the prosecution case or fortify the court in its
ultimate conclusion. Proof of motive in such a
situation certainly helps the prosecution and
supports the eye- witnesses.”
27. Further, in Prem Kumar vs. State of Bihar (1995) 3 SCC
228, the Hon’ble Supreme Court while relying upon the
judgment in State of UP. v. Moti Ram & Ors. 1990 (4) SCC 389
has held as under:
“xxx xxx xxx Very often, a motive is alleged to
indicate the high degree of probability, that the
offence was committed by the person, who was
prompted by the motive. In our opinion, in a caseSC No.726/2021 Page No. 20 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
when motive alleged against the accused is fully
established, it provides a foundational material to
connect the chain of circumstances. We hold that if
motive is proved or established, it affords a key or
pointer, to scan the evidence in the case, in that
perspective and as a satisfactory circumstance of
corroboration. It is a very relevant, and important
aspect,
(a) to highlight the intention of the accused and (b)
the approach to be made in appreciating the totality
of the circumstances, including the evidence
disclosed in the case.”
28. The prosecution has alleged that the accused had the
motive to commit the offence. It has been alleged that the
deceased had illicit relations with the wife of accused and
deceased used to talk to her from the phone of his son Ankit and
daughter Rimjhim, as recorded in the statements of Ankit and
Rimjhim under Section 161 CrPC and that is the reason, before
committing the offence, accused had left his wife and child to his
native place 4-5 days prior to the incident. It is also alleged that
accused used to fight with the deceased for money for buying
liquor.
29. PW-1 Sh. Ankit and PW-2 Smt. Rimjhim are the real
brother and sister of the accused. Deceased was the father of the
accused. Prosecution has cited PW-1 Sh. Ankit and PW-2 Smt.
Rimjhim as witnesses to prove motive for committing the offence
by the accused.
30. PW-1 Sh. Ankit deposed that he was residing with his
sister and his elder brother i.e. accused Avdhesh was residing
alongwith his family and his father (deceased). Accused Avdhesh
SC No.726/2021 Page No. 21 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
and his father used to have continuous quarrel on money.
Accused was a habitual drinker and used to demand money from
his father. He further deposed that on 13.11.2020 after doing his
night duty, he came back to the house of his sister where he was
residing. At around 12.00 -12.30 pm, accused came to his house.
PW-2 asked him about his father. Accused informed that his
father had gone for work. Accused again left the home and came
back after some time and asked him about his father to which he
stated that he did not know about his whereabouts. When PW-1
insisted to know about his father, then accused started crying and
also told him that his phone and money has been stolen by one
Vicky. PW-1 further deposed that thereafter he went to the house
where his father was residing with the accused. Room was found
locked. He broke the lock and found his father sleeping inside
and also found that household articles were scattered and found
that his father had been murdered. PW-1 did not state anything
else.
31. PW-1 was cross examined by learned Addl. PP for the
State. PW-1 Sh. Ankit admitted that accused used to quarrel with
his father and demand money from his father. He further
admitted that accused had dropped his family at the native place
at Bihar about 4-5 days prior to the incident. He also admitted
during his cross examination by ld. Addl. PP for the State that his
father and wife of accused used to talk on mobile phone.
Similarly, PW-2 Smt. Rimjhim, sister of accused/daughter of
deceased only deposed that his father did not come for lunch on
the date of incident. She asked her brother Ankit to go to the
SC No.726/2021 Page No. 22 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
residence of his father. He went there and told her that her father
had expired. She completely turned hostile and resiled from her
statement. She was extensively cross examined by learned Addl.
PP for the State wherein she admitted that accused was a habitual
drinker but she pleaded ignorance in respect of the fact that he
used to quarrel with his father on the pretext of demanding
money for liquor. During her cross examination by learned
counsel for the accused, she stated that her father was happily
residing with the accused and there was no dispute between
them. She also stated that accused had never quarreled with his
father in her presence. PW-2 also pleaded ignorance in respect of
the fact that accused had a suspicion on the character of his wife
and father or that his father was having a illicit relationship with
the wife of the accused. She only admitted that accused had
dropped his family at the native place in Bihar. When the
suggestion was put to her that since the accused was having
doubt over the relationship of his father and his wife, therefore,
he dropped his family at the native village in Bihar, she denied
the said suggestion. The reading of testimony of PW-1 and
PW-2 qua the motive part as discussed above shows that both of
them have not been consistent in their testimonies regarding
strained relationship of accused with the deceased. Further, they
did not depose at all that deceased was in illicit relationship with
wife of accused. No circumstance/events of facts have been
proved by prosecution to prove that accused had the motive to
commit murder of his father.
(ii) Last seen theory/extra judicial confession.
SC No.726/2021 Page No. 23 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
32. The case of prosecution is further based on the last seen
theory and the extra judicial confession allegedly made by the
accused to his brother Ankit who has deposed as PW-1 in the
present case. In the complaint Ex.PW1/A, the complainant Ankit
stated that when his father did not come for lunch to his sister’s
house, he went to the house of his father where accused and his
father were residing. When he opened the door, he found
accused coming out. Accused was perplexed and told him that
he had killed his father and he fled away from there.
33. Statement of complainant as above covers two legal
principles. First is the last seen theory that the accused was alone
found in the house wherein his father i.e. deceased Dilip Kumar
Singh was found dead. Second principle is the extra judicial
confession allegedly made by the accused to PW-1 Sh. Ankit
while fleeing away from there.
34. It is an established principle of law that last seen theory is
a very crucial piece of evidence which establishes an important
link in the cases of circumstantial evidence in order to connect
the accused with the crime. Similarly, extra judicial confession
though may not be a strong piece of evidence, however, it can
certainly give a probative value and could be an aid to join the
links to prove a case of circumstantial evidence.
35. Before coming to the facts, let us dwell upon the law
propounded on last seen theory and extra judicial confession.
The principles of last seen theory was appreciated in Ganpat vs.
SC No.726/2021 Page No. 24 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
State of Madhya Pradesh AIR 2017 SC 4839 wherein the
Hon’ble Supreme Court has observed as under:
” 10. Evidence that the accused was last seen in the
company of the deceased assumes significance when
the lapse of time between the point when the
accused and the deceased were seen together and
when the deceased is found dead is so minimal as to
exclude the possibility of a supervening event
involving the death at the hands of another. The
settled formulation of law is as follows :
“The last seen theory comes into play where the
time gap between the point of time when the
accused and deceased were seen last alive and
when the deceased is found dead is so small that
possibility of any person other than the accused
being the author of crime becomes impossible. xxx
xxx”
36. The last seen theory is an important link in the chain of
circumstances that points towards guilt of accused and the burden
shifts on the accused to offer a reasonable explanation as to the
cause of death of deceased.
37. The law on extra judicial confession has been explained in
Gura Singh vs. State of Rajasthan 2001 (2) SCC 205, wherein the
Hon’ble Apex Court observed as under:
“xxx xxx xxx It is settled position of law that
extra-judicial confession, if true and voluntary, it
can be relied upon by the court to convict the
accused for the commission of the crime alleged.
Despite inherent weakness of extra judicial
confession as an item of evidence, it cannot be
ignored when shown that such confession was
made before a person who has no reason to state
falsely and to whom it is made in theSC No.726/2021 Page No. 25 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
circumstances which tend to support the statement.
Relying upon an earlier judgment in Rao Shiv
Bahadur Singh v. State of Vindhya Pradesh [1954
SCR 1098], this Court again in Maghar Singh v.
State of Punjab [AIR 1975 SC 1320] held that the
evidence in the form of extra-judicial confession
made by the accused to witnesses cannot be
always termed to be a tainted evidence.
Corroboration of such evidence is required only by
way of abundant caution. If the court believes the
witness before whom the confession is made and is
satisfied that the confession was true and
voluntarily made, then the conviction can be
founded on such evidence alone. In Narayan Singh
v. State of M.P. [AIR 1985 SC 1678] this Court
cautioned that it is not open to the court trying the
criminal case to start with presumption that extra
judicial confession is always a weak type of
evidence. It would depend on the nature of the
circumstances, the time when the confession is
made and the credibility of the witnesses who
speak for such a confession. xxx xxx xxx”
38. Now coming to the deposition of PW-1, he is the only
witness of the prosecution who could have established/proved the
last seen theory put forth by the prosecution, however, on reading
testimony of PW-1, it is found that he did not support this theory
in any manner whatsoever. PW-1, while narrating the incident in
his deposition, completely took a ‘U’ turn and instead of saying
that he had gone to the house of his father when his father did not
come for lunch at his sister’s house, PW-1 stated that accused had
come to the house of his sister and told him that he did not know
the whereabouts of his father and when he insisted, he started
crying.
39. Though as per the prosecution version, when PW-1 went to
SC No.726/2021 Page No. 26 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
the house of his father, he found accused inside the house,
however, as per his deposition, accused was at the house of his
sister when PW-1 went to his father’s house to see him. He did
not even utter a word about the extra judicial confession made by
accused to PW-1 regarding murdering his father by the accused
in his (PW-1) deposition. During the cross examination
conducted by learned Addl. PP for the State, PW-1 openly denied
those facts and denied the suggestion that when he opened the
gate of the house, all of a sudden accused came out, he was little
bit perplexed and stated “Maine Papa Ko Maar Diya”. In these
circumstances, the second circumstance i.e. the last seen theory
wherein the accused was allegedly found present at the house
where the dead body of the deceased was found and the extra
judicial confession made by the accused to PW-1 does not stand
proved.
(iii) Arrest of accused and recovery of sil-batta (weapon of
offence) at the instance of accused
40. As per deposition of PW-4 IO/Insp. Harpal Singh and
PW-3 SI Vipin Malik, on 14.11.2020 at about 11.30 pm they
received information from the secret informer that accused
Avdhesh who had killed his father could be apprehended near
Green Vatika, Nawada. PW-4 alongwith SI Vipin Malik and HC
Gopal went to the said place where they saw the accused and
arrested him. The arrest memo Ex.PW3/B is dated 15.11.2020 at
about 12.30 am. The incident had taken place on 14.11.2020.
This shows that accused was arrested on the same night when the
incident took place. It is interesting to note that accused was
residing at G-9, Om Vihar, Phase-V, Uttam Nagar, New Delhi
SC No.726/2021 Page No. 27 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
and the accused has been shown to be arrested from a vacant plot
near Green Vatika, 9 Acre Om Vihar, Phase-V i.e. the address
mentioned in the colomn ‘Place of Arrest’ in the arrest memo.
This indicates that the accused was arrested from the place which
was in the vicinity of the house of the accused. It is very
improbable that a person after committing murder would remain
in the vicinity of his house and would be found in vacant plot
where there would be no place to hide himself. As per the
deposition of PW-3 and PW-4, at the instance of secret informer,
they went there and accused was arrested. The testimony of
these witnesses indicates as if accused was waiting for the police
officials to come and arrest him. The testimony of these two
witnesses in respect of the arrest of the accused does not appear
to be convincing at all and therefore, his arrest is doubtful.
41. It is further noted from the testimony of PW-3 and PW-4
that after his arrest, the disclosure statement of accused was
recorded wherein he disclosed that he has used sil-batta to hit his
father on his head and other parts of his body. At the instance of
accused, the weapon of offence i.e. sil-batta was recovered from
an empty plot which was found containing blood stains.
42. It is settled law that only the portion of the disclosure
statement which leads to the discovery of a fact is admissible
under section 27 of Indian Evidence Act. The position of law in
relation to Section 27 of the Evidence Act was elaborately made
clear by Sir John Beaumont in Pulukuri Kottaya and Others Vs.
Emperor (AIR 1947 PC 67 wherein it was held:
SC No.726/2021 Page No. 28 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
“Section 27, which is not artistically worded, provides
an exception to the prohibition imposed by the
preceding section, and enables certain statements made
by a person in police custody to be proved. The
condition necessary to bring the section into operation
is that the discovery of a fact in consequence of
information received from a person accused of any
offence in the custody of a Police officer must be
deposed to, and thereupon so much of the information
as relates distinctly to the fact thereby discovered may
be proved.”
43. Perusal of seizure memo Ex.PW3/F shows that the sil-batta
was found lying in an empty plot near the house of the accused
where he was residing. The seizure memo is silent about
anything used by the accused in order to hide the sil-batta or
preventing it from viewing it by anybody else, meaning thereby
that the weapon of offence has been recovered from an open
place which was accessible to one and sundry. The law in this
regard has been discussed in Heera Lal @ Heera vs. State Govt.
of NCT of Delhi 2014 SCC OnLine Del 7126 wherein Hon’ble
High Court of Delhi has held –
“15. As regards the recovery of iron rod at the
instance of appellant it may be noted that the said
recovery was from an open plot behind the school and
the Shani mandir and thus place was accessible to one
and all. Despite the opinion of the post-mortem doctor
that the injury to the deceased was possible by the said
iron rod the same cannot be held discriminately against
Heera Lal in view of the recovery being from an open
and accessible place.
16. In the decision reported as 1950 SCC 62: AIR
1954 SC 36 Trimbak v. State of M.P. the Supreme
Court held that when the recovery of incriminating
articles was made from an open and accessible place it
is difficult to hold positively that the accused was in
possession of these articles. The fact of recovery bySC No.726/2021 Page No. 29 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
the accused is compatible with the circumstance of
somebody else having placed the articles there and of
the accused somehow acquiring the knowledge about
its whereabouts and that being so, the fact of discovery
cannot be regarded as conclusive proof that the
accused was in in possession of these articles. This
position was reiterated in the decision reported as
(1983) 2 SCC 251 Kora Ghasi v. State of Orissa.
Clarifying the legal position further in the decision
reported as AIR 1999 SC 1293 State of Himachal
Pradesh v. Jeet Singh the Supreme Court noted:
26. There is nothing in Section 27 of the
Evidence Act which renders the statement
of the accused inadmissible if recovery of
the articles was made from any place which
is “open or accessible to others”. It is a
fallacious notion that when recovery of any
incriminating article was made from a place
which is open or accessible to others, it
would vitiate the evidence under Section 27
of the Evidence Act. Any object can be
concealed in places which are open or
accessible to others. For Example, if the
article is buried on the main roadside or if it
is concealed beneath dry leaves lying on
public places or kept hidden in a public
office, the article would remain out of the
visibility of others in normal circumstances.
Until such article is disinterred its hidden
state would remain unhampered. The
person who hid it alone knows where it is
until he discloses that fact to any other
person. Hence the crucial question is not
whether the place was accessible to others
or not but whether it was ordinarily visible
to others. If it is not, then it is immaterial
that the concealed place is accessible to
others.
17. It has thus to be seen whether the recovery, if
from an open and accessible place is lying concealed
and could be recovered only after the accused
disinterred the same from the said hidden stage. In the
present case there is no such evidence. xxxxxxxxxx”
SC No.726/2021 Page No. 30 of 41
44. Applying the ratio laid down above, the weapon of offence
in the present case was found from an open place. It is not at all
the case of prosecution that accused had hidden the weapon
somewhere within this open place so as to make it inaccessible to
the others. The place of recovery should be such which would
have been in the exclusive knowledge of the accused. It has
already been held that the arrest of the accused was made under
doubtful circumstance. Furthermore, seizure memo Ex.PW3/F
shows that it bears the signatures of SI Vipin Malik only as a
witness and no independent witness was joined while effecting
recovery. There is no whisper in the deposition of IO/PW4 Insp.
Harpal Singh or that PW-3 SI Vipin Malik that they made efforts
to join independent witnesses. Generally, the non-joining of
independent witnesses while effecting recovery may not be that
significant, but in peculiar facts of the case when the arrest of the
accused has been made under doubtful circumstances, the alleged
recovery of weapon of offence i.e. sil-batta at the instance of
accused does not stand proved and cannot be said to be
admissible under Section 27 of Indian Evidence Act.
(iv) Postmortem report of deceased.
45. The postmortem on the body of the deceased Dilip Kumar
Singh was conducted on 15.11.2020. The postmortem report
Ex.A6 was admitted by the accused under Section 294 CrPC. As
per the postmortem report Ex.A-6, during external examination,
following external injuries were found on the body of deceased.
“External Injuries
1. Lacerated wound of size of 1cm x 0.5cm x
SC No.726/2021 Page No. 31 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
bone deep present over middle front of forehead.
2. Contusion, reddish in colour of size 2.5cm x
1cm present over left side of forehead.
3. Contusion, reddish in colour of size 3cm x
1.5cm present over right side of forehead.”
46. Further, internal examination of the dead body of deceased
was conducted and following injuries were found:
“Internal Examination
Head
Scalp: Effusion of blood present bilateral fronto
parietal region of head.
Skull / Base of Skull: Fracture of left parietal bone.
Brain, Meanings & Vessels: Subdural haemorrhage
bilateral present over fronto parietal region and
subarachnoid haemorrhage present over all over
the brain.
Neck
1. Hyoid Bone/Thyroid Cartilage/Cricoid
Cartilage, Tracheal Rings & Mucosa, Any Foreign
Body in Trachea: NAD.
Chest (Thorax)
ST (THORAX)
1. Ribs and Chest Wall Fracture of 4,5,6 and 7 ribs
of left side anteriorly along with mid clavicular
line.
2. Oesophagus : NAD.
3. Pleural Cavities present : About 50ml of clotted
blood mixed fluid present
4. Lungs : congested.
5. Heart and pericardial sac/large blood vessels:
NAD.
Abdomen
1. Abdominal wall : NAD.
2. Peritoneal Cavity : NAD .
3. Stomach:
a. Contents : About 200ml of semi digestive food
SC No.726/2021 Page No. 32 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
(dal-rice)
b. Mucosa : NAD.
4. Small intestine : Contains fluid and gases,
Walls-NAD.
5. Large intestine, vermiform appendix: Contains
faecal matter and gases, Walls-NAD.
6. Liver, gall bladder, biliary passages : congested.
7. Spleen : congested.
8. Kidney, renal pelvis, and urethra : congested.
Genital Organ
Urinary Bladder : Empty
Rectum : Empty
Genital organs : NAD
Spinal Column : Intact.”
47. After postmortem examination, the opinion on the cause of
death was given which is as under :
“The cause of death: The cause of death is due to
cranio-cerebral damage consequent upon blunt
force impact to the head. Injury no 2 is sufficient
to cause death in ordinary course of nature. All
injuries are ante mortem in nature, fresh in
duration could be caused due to blunt force
impact.”
48. The postmortem report Ex.A6 clearly shows that the death
of deceased Dilip Kumar Singh was homicidal.
49. After conducting the postmortem on the body of the
deceased, following exhibits were preserved and were sealed
with the seal of ‘PM DDUH’ and were handed over to the IO
which was as under :
“(1) Blood on Gauze piece
(2) cloths.”
SC No.726/2021 Page No. 33 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
50. In this respect, seizure memo Ex.PW3/H was prepared by
the IO/Insp. Harpal Singh on 15.11.2020. This fact is also not
disputed.
(v) Subsequent opinion taken on the weapon of offence i.e. sil-
batta and scientific evidence (DNA analysis on the weapon of
offence and blood sample of deceased and remaining DNA
analysis.
51. The subsequent opinion on the nature of injuries was
admitted by the accused under Section 294 CrPC and was
exhibited as Ex.A9.
52. Subsequent opinion Ex.A9 given by doctor on weapon of
offence is as under:
“The produced parcel containing weapon of offence (intact
6 seals) opened and one silbatta taken out. On examination
of the same, it is observed that it having weight of 6 Kg 916
grams, the total length of 36 cm and breadth 24 cm and
thickness is 4 cm. There is blood like staining present on
the upper surface of silbatta and injuries mentioned in post
mortem report No.1861/2020 could be caused by the
produced weapon of offence i.e. silbatta.”
53. PW-5 Ms. Seema Nain, Asstt. Director (Biology), RFSL,
Chanakya Puri, New Delhi has proved the FSL report Ex.PW5/A
which reads as under:-
“DESCRIPTION OF PARCELS & CONDITION
OF SEALS SAMPLE SEAL & SEALS INTACT
AS PER F.A.’S LETTERSealed Cloth parcel : 07
Sealed Cloth Tape :03
Sealed Paper Envelope : 01
Sealed Plastic dibbi : 01
Total : 12(Twelve)SC No.726/2021 Page No. 34 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
DESCRIPTION OF ARTICLES CONTAINED IN
PARCELParcel ‘1’ : One sealed cloth parcel sealed with the
seal of “HS” containing exhibit “I’stated to be
lifted from the scene of crime.
Exhibit “1” : One dirty, damp, foul smelling
Chunni having greenish like fungal growthParcel ‘2’ : One sealed cloth parcel sealed with the
seal of “HS” containing exhibit “2” stated to be
lifted from the scene of crime.
Exhibit ‘2’ : One dirty Gamchha having brownish
stains.
Parcel ‘3’ : One sealed cloth parcel sealed with the
seal of “HS” containing exhibit ‘3’, stated to be
lifted from the scene of crime.
Exhibit ‘3’ : One dirty blanket having brownish
stainsParcel ‘4’ : One sealed plastic dibbi sealed with the
seal of “HS” containing exhibit ‘4’ stated to be
lifted from the scene of crime.
Exhibit ‘4’ :One cotton wool swab having brownish
stain described as ‘Blood on cotton’.
Parcel ‘5’ : One sealed cloth parcel sealed with the
seal of “HS” containing exhibit ‘5’ stated to be
lifted from the scene of crime.
Exhibit ‘5’ : One piece of plywood having
brownish stains.
Parcel ‘6’ : One sealed cloth parcel sealed with the
seal of “PM DDUH” containing exhibit ‘6’ stated
to be recovered on the instance of accusedSC No.726/2021 Page No. 35 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
‘Avdhesh Kumar‘.
Exhibit ‘6’ : One piece of stone having brownish
stains described as “Silbatta”.
Parcel ‘7’ : One sealed cloth parcel sealed with the
seal of “PM DDUH” containing exhibits “7a’, ‘7b’
& ‘7c”, kept in polythene stated to be of deceased
Dalip Kumar.
Exhibit ‘7a’ : One dirty Shirt.
Exhibit ‘7b’ : One dirty Pant/trouser.
Exhibit ‘7c’ : One dirty Underwear.
Parcel ‘8’ : One sealed cloth tape sealed with the
seal of “CMO DDU HOSPITAL” containing
exhibits ‘8a’, ‘8b’, ‘8c’, ‘8d’, & ‘8e’ stated to be of
Accused Avdhesh Kumar
Exhibit ‘8a” : One dirty Shirt.
Exhibit ‘8b” : One dirty T-shirt.
Exhibit ‘8c’ : One dirty Nikkar
Exhibit ‘8d’ : : One dirty Jeans pant.
Exhibit ‘8e’ : One dirty Underwear.
Parcel ‘9’ : One sealed cloth tape sealed with the
seal of “CMO DDU HOSPITAL” containing
exhibits ‘9’, kept in plastic dibbi stated to be
Accused Avdhesh Kumar.
Exhibit ‘9’ : Few dirty nail clippings described as
‘Nail clipping’.
Parcel ’10’ : One sealed cloth parcel sealed with
the seal of “HS” containing exhibit “10” stated to
be lifted from the scene of crime.
Exhibit ’10’ : One piece of wooden board
described as ‘Control plywood”.
Parcel ’11’ : One sealed paper envelope sealed
with the seal of “PM DDUH”, containing exhibit
SC No.726/2021 Page No. 36 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
’11’ stated to be of deceased Dalip Kumar.
Exhibit ’11” : One gauze cloth piece having
brownish stains described as ‘Blood on gauze
piece”.
Parcel ’12’ : One sealed cloth tape sealed with the
seal of “CMO DDU HOSPITAL”, containing
exhibit ’12’ stated to be of accused Avdhesh
Kumar.
Exhibit ’12’ : One dirty, damp, foul smelling gauze
cloth piece described as “Blood sample”.
RESULT OF BIOLOGICAL EXAMINATION
Conclusion :- DNA profiling (STR analysis)
performed on the source of exhibits ‘2’, ‘3’, ‘4’, ‘5’,
‘6’, ‘7a’, ‘7b’, ‘7’, ‘9’ and ’11’ is sufficient to conclude
that
1. DNA profile generated from the source of
exhibit 11′ (Blood gauze of deceased) is matching
with DNA profile generated from the source of
exhibits ‘2’(Gamchha from SOC), 3′(Blanket from
SOC), ‘4’(Swab from SOC), ‘5’(Ply wood from
SOC), ‘6’ (Sil batta from SOC), ‘7a’ (Shirt of
deceased) and ‘7b’ & ‘7c’ (Pant & Underwear of
deceased).
2. DNA profile generated from the source of
exhibit ’11’ (Blood gauze of deceased) is not
matching with DNA profile generated from the
source of exhibits ‘9’ (Nail clipping of accused).”
54. At the first blush, opinion taken on weapon of offence and
the FSL reports suggest that the prosecution has duly proved the
crime but the inquisitive analysis of the same would indicate that
SC No.726/2021 Page No. 37 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
prosecution has not able to prove this circumstance irrefutably.
55. PW4 IO/Insp. Harpal had deposed that weapon of offence
i.e. sil-batta was recovered at the instance of accused on
15.11.2020 and seizure memo Ex.PW3/F was prepared which
was duly sealed with the seal of ‘HS’.
56. It was only on 14.12.2020 that this weapon of offence i.e.
sil-batta was sent to Forensic Department of DDU Hospital for
getting subsequent opinion. The subsequent opinion was given
which has been exhibited as Ex.A9 by Dr. V.K. Ranga, Specialist,
Department of Forensic Medicine, DDU Hospital as it was
admitted by accused during admission/denial of the documents
under Section 294 Cr.PC. It is worthwhile to note that Dr. V.K.
Ranga is the same doctor, who had conducted the postmortem on
the body of the deceased and had preserved the specimens i.e.
blood sample of the deceased in gauze piece and the clothes of
the deceased, which were handed over to IO.
57. The seizure memo dated 15.11.2020 of the sil-batta
Ex.PW3/F shows that sil-batta contained blood stains. It was duly
sealed with the seal of IO i.e. HS. This sealed weapon of offence
was allowed to remain in malkhana for about a month from the
date of its seizure. No reason for the said delay has been given/
explained in the testimony of IO/PW-4 Insp. Harpal Singh. The
blood stains found on the weapon of offence is a very crucial
piece of evidence which required delicate handling and prompt
action. Even after one month, instead of sending the sil-batta to
SC No.726/2021 Page No. 38 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
FSL, it was sent to the doctor of Forensic Medicine of DDU
Hospital first for procuring a subsequent opinion which exercise
could have been undertaken after receiving the report from FSL.
The seal of the said sil-batta was broken as per the contents of
subsequent opinion paper Ex.A9 and it was examined by said
doctor. Meaning thereby, the said sil-batta would have been
touched by the doctor and would have been taken in his hand for
examination purposes. The alleged weapon was containing the
blood stains as recorded in Ex.PW3/H. The possibility of stains
getting destroyed while handing/examining the weapon of
offence cannot be ruled out. Therefore, possibility of tampering
with the said weapon of offence cannot be ruled out at that stage
as it was allowed to be opened before sending it to FSL. It was
only after taking the subsequent opinion on 14.12.2020, that on
16.12.2020, it (weapon in unsealed condition) was sent to FSL
with other exhibits lying in malkhana. Meaning thereby, that the
weapon of offence was not sent in intact condition in which it
was recovered, to the FSL. The very essential requirement of
anything getting examined by way of scientific examination is
that it should be sent immediately without any breathing period
in order to rule out the possibility of any interpolation. Had there
been any explanation for such conduct, it ought to have been
mentioned in the deposition of IO. There is no such explanation.
58. Hence, in backdrop of all findings given above, it is opined
that having doubted the recovery of sil-batta at the instance of
accused, the circumstance that the sil-batta carried blood of same
group as that of deceased is rendered meaningless because there
SC No.726/2021 Page No. 39 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
is no admissible evidence to connect the sil-batta (weapon of
offence) with the accused.
59. Apart from the above said fact, it is also pertinent to note
here that during the investigation, the nail clippings of the
accused were also seized and were sent to FSL for the purposes
of comparison. Ex.’9′ in the description of articles contained in
parcel as mentioned in the FSL Report Ex.PW5/A proved by
PW-5 Dr. Seema Nain finds mention of few dirty nail clippings
‘nail clippings’. These nail clippings were compared and as per
the FSL result, the DNA profile generated from blood gauze of
deceased did not match with the DNA profile generated from the
nail clippings of the accused.
60. To sum up, to my mind, the first rule is that the facts
alleged on the basis of legal inference from circumstantial
evidence must be clearly proved beyond reasonable doubt which
is not the case herein.
Conclusion
61. In view of the above discussion, the prosecution has failed
to prove any of the circumstances i.e. the motive to commit the
offence by accused; last seen theory/extra judicial confession;
arrest of accused and recovery of sil-batta i.e. the weapon of
offence at the instance of accused as well as the scientific
evidence to connect the accused with the crime, on which the
prosecution has relied to prove the guilt of the accused. The
prosecution has failed to create any network from which there
SC No.726/2021 Page No. 40 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
should not have been any escape for the accused. The complete
chain in order to connect the accused with the offence charged
could not be established by the prosecution and hence, accused is
acquitted for the charge framed for the offence of murder under
Section 302 IPC.
62. Hence, accused Avdhesh stands acquitted of the charges
framed under Section 302 IPC in the present FIR No.911/2020
PS, Uttam Nagar.
Digitally signed Announced in open court VANDANA by VANDANA JAIN on 29.04.2025 JAIN Date: 2025.04.29 16:00:07 +0530 (Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi/29.04.2025
Note: This judgment contains forty-one (41) pages and having
my signature on each page. Digitally signed by
VANDANA VANDANA JAIN
JAIN Date: 2025.04.29
16:00:12 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi/29.04.2025
SC No.726/2021 Page No. 41 of 41
State vs. Avdhesh
FIR No.911/2020, PS Uttam Nagar
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