Delhi District Court
State vs Maqbool on 3 May, 2025
CNR NO. DLCT01-005446-2016
FIR No. 195/2015
PS: Jama Masjid
U/s: 302 IPC
IN THE COURT OF SHRI PRANJAL ANEJA
SPECIAL JUDGE, NDPS-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
STATE
Vs.
MAQBOOL
S/o Karim,
R/o Village Tigda Majra,
Attora, PS Rampur Mathura,
District Sitapur, U.P.
Instituted on : 15.01.2016
Committed on : 06.02.2016
Argued on : 27.01.2025
Decided on : 03.05.2025
JUDGMENT
1. The accused in the instant case has been sent to face trial with
the allegations that on 18.10.2015 between 10 am to 2:30 pm near staircase
of ground floor near Room No. 4 of House No. 953, Gali Shyam Lal
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Bazar, Matia Mahal, Amrina Guest House, Delhi within jurisdiction of PS
Jama Masjid, he caused death of deceased Ms. Kaushayla by strangulation.
Accused was thereby alleged to have committed offence U/s 302 IPC.
2. The facts as discernible from record may be taken note of: In
the intervening night of 18/19.10.2015, on receipt of DD no. 3A dated
19.10.2015 regarding murder of a lady in Amrina Guest House, Jama
Masjid, SI Suresh Pal alongwith Ct. Fakruddin reached at the spot i.e. H.
No. 953, Gali Shyam Lal Bazar, Matia Mahal, Amrina Guest House, where
Manager namely Mohd. Aslam met them alongwith a servant. In the
meantime, ATO Inspector Dhan Singh alongwith the staff including a lady
Ct. Sudha and Ct. Prahlad reached the spot. The said Manager led them to
the Room No. 4 of the said Guest House at Ground Floor, there SI Suresh
saw one dead body of a lady aged about 35-40 years lying on the bed in
that room. One yellow chunni was tightly wrapped around her neck and
blood was oozing out from her nose, her tongue had also come out and the
same was tightly held between her teeth. There was one purple colour
ladies bag on the bed in which a red comb, one steel box, roties in
polythene were lying. A pair of black colour plastic sleepers were also
lying there under the bed. Insp. Dhan Singh called the Crime Team at the
spot and got the spot inspected. After inspection and taking of photographs
of the scene of occurrence, the dead body was sent to mortuary at Maulana
Azad Medical College. Thereafter, Insp. Dhan Singh prepared rukka and
registered the present FIR through Ct. Prahlad. During investigation,
Manager of the said Guest House namely Mohd. Aslam disclosed that at
about 10 AM, one person alongwith one lady came at the Guest House for
taking a room and that person apprised the lady being his wife. Manager of
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that Guest House allotted room no. 4 situated under the staircase for a sum
of Rs. 600/-. That person told his name as Maqbool and produced his
original Aadhar Card to the Manager. He also told his mobile number as
9818096206. As per Aadhar Card, the name of that person was revealed as
Maqbool S/o Karim R/o 12-A, Attora, Near Buland Masjid Tigda Sitapur,
Sitapur, UP-261001. Thereafter, that person and that lady entered the room
no. 4. At about 2:20 pm, Maqbool left the guest house and did not return.
3. During investigation, CCTV footage installed inside the Guest
House was checked in which a person alongwith a lady came to the Guest
House and booked the room no. 4 and the said person was the same person
whose photo was affixed on the Aadhar Card which was produced by the
Manager of the said Guest House. Then technician copied the CCTV
footage in a pen drive and then gave the DVR alongwith the pen drive to
IO Insp. Dhan Singh, who sealed the DVR in a parcel with the seal. During
further investigation, husband and son of the deceased identified the dead
body of the deceased. Postmortem on dead body of the deceased was
conducted and after postmortem, dead body was handed over to the
husband of the deceased. During further investigation, a raid was
conducted at the residence of accused Maqbool i.e. Village Tigda, Mazra
Atola, PS Rampura Mathura, Sitapur where house of Maqbool was found
locked. Thereafter, on 20.10.2015 at about 4:30 PM, one person opened the
lock of the house of the accused and apprehended them and he was
arrested in the present case. The exhibits were sent to FSL for examination.
On completion of investigation, chargesheet was filed under Section 302
IPC against accused Maqbool.
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CHARGE :
4. On completion of necessary formalities, matter was
committed to the Court of Sessions. Charge under Section 302 IPC was
framed upon the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
5. Before beginning to note the testimonies of the prosecution
witnesses, it would be apt to note, for convenience, the prosecution
witnesses and their role in the case. The same has been tabulated as
under :-
Sr. No. Name of Witnesses Role
Mohd. Ovais Tariq (owner of
PW-1 Witness to the incident
Guest House)
Mohd. Aslam (Manager of
PW-2 - Do -
Guest House)
Witness who deputed on behalf of Dr.
PW-3 Dr. Mohit Chauhan Ashish Bhute to prove PM report no.
919/15 dt. 19.10.2015.
PW-4 Sh. Surender Kumar (Nodal Witness to prove the record i.e.
Officer) original customer application form
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(CAF) of mobile no. 9818096206.
SI Swadesh Kumar (Duty Witness to prove the registration of
PW-5
Officer) present FIR.
Husband of deceased to identify dead
PW-6 Sh. Suresh Rajvanshi
body of his wife.
Witness, who provided mobile sim to
PW-7 Sh. Mahender Kumar
accused.
Son of deceased, who identified dead
PW-8 Sh. Dharmender Kumar
body of her mother
HC Arun Kumar
To prove the photographs of the spot
PW-9 (Photographer in mobile crime
clicked by him.
team)
Received call regarding murder. To
PW-10 Ct. Rajeev (Constable in PCR)
prove the PCR call.
Insp. Pankaj (SI at Crime
PW-11 To prove the Crime Team Report.
Team)
PW-12 Ct. Prahlad (Constable at PS Accompanied the IO to the spot and
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took the rukka to PS and got the FIR
Jama Masjid)
registered.
First to reach the spot upon receiving
SI Suresh Pal (Posted at PS
information of murder. Saw the dead
PW-13 Jama Masjid on emergency
body. Also seen the CCTV footage and
duty)
to prove the same.
Accompanied the IO to the spot. Took
Ct. Kamal (Motorcycle Rider
PW-14 the dead body to the Maulana Azad
to the IO)
Mortuary.
Went alongwith SI Sushil Kumar to the
ASI Mustaq Khan (Posted as village of accused in UP in his search.
PW-15
HC at PS Jama Masjid Witness in the arrest of accused. To
prove the arrest.
Delivered copy of FIR to Ilaka
PW-16 HC Tribhuvan
Magistrate and Senior Police Officer.
Went to the village of accused in UP in
PW-17 SI Sushil Kumar his search and arrested him.To prove
the arrest.
PW-18 Ct. Ravinder Kumar Joined investigation with IO. To prove
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seizure memo of taking blood samples
of accused. Deposited the exhibit in
FSL.
PW-19 ASI Adesh Kumar (MHCM) Received case property at the PS.
Carried out investigation and filed the
PW-20 Insp. Dhan Singh (IO)
charge-sheet.
Dr. Anita Chhari (Sr.
To prove her FSL report as to
PW-21 Scientific Officer, Biology,
biological and DNA examination.
FSL Rohini)
Dr. Bharti Bharadwaj (Sr.
To prove her FSL report as to
PW-22 Scientific Officer, Physics ,
examination of DVR.
FSL Rohini)
6. PW1: Mohd. Ovais Tariq, owner of the Guest House, deposed
that the house in which he is residing is four storeyed building including
the ground floor. He further deposed that on the three floors of this
premises, i.e. ground floor, 1st Floor and 2nd Floor, he is running a guest
house under the name and style of Amrina Guest House and he has been
residing on the 3rd Floor of the said guest house. He further deposed that
Mohd. Aslam is the Manager of his guest house for the last about 10 to 12
years. He further deposed that on 18.10.2015 at about 10/11 PM, he was
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present at his house, his Manager Mohd. Aslam called him at the reception
of the guest house and told that in the morning of 18.10.2015 at about 10
AM, one person came with one lady, stating to be his wife, to take a room
on rent in his guest house and that person furnished his ID & mobile
number to the Manager Aslam while stating that he would bring the ID of
the lady in some time. The name of that person as per his ID was Mohd.
Maqbool S/o Kareem Baksh. He was given room no. 4 on the ground floor
of the guest house for Rs. 600/-. He further deposed that his manager
Aslam told that person that the entry in the register would be done only
after taking the ID of lady. That person along with the above mentioned
lady with his luggage, went inside room no. 4 and after some time that
person i.e. accused went out of the guest house on the pretext that he was
going to bring the ID of that lady but did not return for a considerable time,
upon which the Manager gave him a call on his mobile, then Maqbool
replied that he was stuck in a road jam and he would reach the hotel after
some time, but Maqbool did not turn up and his manager Aslam again
contacted him on his mobile which was found switched off. He further
deposed that thereafter, Aslam checked room no. 4 wherein the said lady
was found dead.
7. PW1 further deposed that on this information from Manager
Aslam, he also went inside the room no. 4 and found the lady lying dead.
He further deposed that thereafter he made a call at 100 number, police
arrived, inspected the spot, made enquiries from them, took the
photographs and sent the dead-body to the hospital. He further deposed
that he called camera technician and the CCTV footage of the camera
which was installed at the reception of the hotel was handed over to the
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police by the said technician on his direction, which was seized by the
police vide seizure memo Ex. PW1/A which bears his signatures at point
A. He further deposed that police recorded his statement.
8. For the purpose of identificaiton of the DVR to the witness,
one parcel bearing no. parcel-1 + OPC having particulars of this case
sealed with the seal of FSL Dr. B.B. Delhi was produced and opened. On
opening it, one DVR and one envelope bearing particulars of the case was
taken out and shown to the witness and the witness identified the DVR to
one which he had given to the IO during investigation. The same was
exhibited as Ex. P-1. The said witness/PW-1 was cross-examined by the
Ld. Legal Aid Counsel for accused.
9. PW2: Mohd. Aslam deposed that he has been working as
Manager at Amrina Guest House, 953, Shyam Lal Gali, Matial Mahal,
Jama Masjid, Delhi since last 10 years. He further deposed that on
18.10.2015, when he was present at the reception of the guest house, on
that day at about 10 am, one person alongwith a lady came and asked for a
room in the Guest House, upon which room no. 4, at the ground floor, was
allotted to them. He further deposed that he asked the identity of the said
person and the lady and upon this, the said male person gave his Adhar
card in original and also gave his phone number. He further deposed that
the name of the said person was mentioned as Maqbool S/o Karim on the
said Adhar Card. The witness/ PW-2 correctly identified Maqbool, who
was present in Court on that day. He further deposed that he asked the
accused about the identity proof of the lady and he also told the accused
that as and when he brings identity proof of the lady, he would make the
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entry in the register regarding their arrival. He further deposed that the
accused told him that at that time he was not having her ID proof and that
he would submit the same when he goes for taking meals. He further
deposed that thereafter the accused alongwith the lady entered room no. 4
at ground floor, situated in front of his office and at about 2 / 2:15 pm, he
saw the accused coming out of room no. 4 and upon asking him to furnish
ID proof of the lady, the accused told that he was leaving for meals and
would bring ID proof of lady.
10. PW2 further deposed that since the accused did not return, at
about 3 pm, he tried to contact the accused on phone but his phone was
lying switched off and again he made 3-4 attempts to contact him on phone
but his phone was lying switched off, however, at about 8 pm, he again
made a call at the mobile phone of accused who responded and stated that
he was struck up in the Ram Lila crowd on the way and reaching the guest
house with the identity proof of the lady. PW2 deposed that thereafter, he
knocked the door of room no. 4 but no one responded and then he peeped
through the ventilator, which was above the door of the room, but did not
notice any activity inside the room. He further deposed that he then
observed that a lady was sleeping inside the room but she was bleeding
from her mouth. He further deposed that he also found locked, in unlocked
condition, hanging in the kunda of the door. He further deposed that prime
facie, it appeared as if the room had been locked from outside but actually
it was found unlocked and he then removed the lock, opened the door and
entered the room and found that the lady lying on the bed was bleeding
from her mouth. Immediately, he came out of the room, inserted the lock
as it earlier was and informed the owner of the Guest House Sh. Owais
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Tariq and narrated him about the incident. He further deposed that
thereafter, the owner of the Guest House also came downstairs and then
made call from his mobile phone to police on 100 number.
11. PW2 further deposed that in pursuance of the call, police
reached there and inspected the scene of crime and recorded his statement.
He further deposed that he produced the Aadhar card of the accused to the
police which was seized vide memo Ex PW2/A which bears his signature
at point A. Police also seized the visitor’s register of his guest house vide
seizure memo Ex PW2/B which bears his signatures at point A. Police
prepared the site plan/ map of the place of occurrence at his instance. He
further deposed that on 16.11.2015, the IO called him to Tis Hazari Courts.
He further deposed that in the Court complex accused Maqbool alongwith
police reached and he identified him as the person Maqbool, who had got
booked the room no. 4 in his guest house alongwith a lady (since deceased)
and left her in the guest house.
12. From the Court file, PW-2 identified the Aadhar Card Ex. P1
in the name of accused Maqbool, and visitor’s register exhibited as Ex. P2,
both seized by the police. Photograph of the deceased was also shown to
the witness/ PW-2 from the Court file, which he correctly identified as the
lady whom the accused had brought to room no. 4 of his guest house on
the date of incident and left her in the room and who was found dead in the
room. The photograph has been exhibited as Ex PW2/C. PW-2 has been
cross-examined by the Ld. Legal Aid Counsel for accused.
13. PW3: Dr. Mohit Chauhan, Sr. Resident, Department of
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Forensic Medicine, Maulana Azad Medical College, Delhi, deposed that he
has been deputed through proper channel to prove the post-mortem (PM)
report no. 919/15 dated 19.10.2015 of Smt. Kaushalya Devi W/o Sh.
Suresh Rajvanshi, prepared by Ashish Bhute, the then Sr. Resident, who
has left the services of the hospital and whose present whereabouts are not
known. PW3 deposed that he has worked with Dr. Ashish Bhute and seen
him signing and writing in the normal course of official duties. PW3
identified the signatures of Dr. Ashish Bhute at points A, B, C and D on the
post-mortem report Ex PW3/A.
14. PW3 further deposed that as per the postmortem examination
report, according to brief history, the deceased was found dead in room no.
4 of Hotel Amrina Guest House in the area of Jama Masjid and a chunni
was found tied around her neck and a knot of the chunni was present on
the back of the neck. He further deposed that as per PM Report, one injury
i.e. ligature mark was observed on the neck of the deceased. He further
deposed that two contusions of reddish blue colour were also observed by
the doctor on the dead body and the opinion of the cause of death was
asphyxia consequent upon antemortem ligature strangulation via injury no.
1. He further deposed that all the injuries were antemortem in nature, fresh
in duration prior to death and were caused by blunt force trauma. He
further deposed that Ligature mark mentioned in injury no. 1 was caused
by ligature material and was possible by the chunni present in situ around
the neck, as finds mentioned in the PM report. The viscera was preserved
to rule out any concomitant poisoning.
15. A question was put to the witness/ PW3 that in view of the
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PM Report Ex PW3/A, whether injury no. 1 was possible in suicidal
manner by the deceased herself. PW3 answered that an attempt of suicidal
strangulation is not possible in the present case as while strangulating
oneself, one looses consciousness due to constriction of cerebral blood
vessels thereby loosening the hand grip. Thus, making suicidal
strangulation attempt is impossible. PW3 was cross-examined by the Ld.
Legal Aid Counsel for accused.
16. PW4: Sh. Surender Kumar, Nodal Officer from Bharti Airtel
Ltd. deposed that he brought summoned record i.e. original customer
application form (CAF) of mobile phone no. 9818096206. He further
deposed that as per their records, this mobile number was registered in the
name of Mahinder Kumar S/o Kirori Lal R/o 367, Ram Nagar, Krishan
Nagar, Delhi-61. Certified copy of Customer Application Form was
exhibited as Ex. PW4/A (OSR). Alongwith CAF one copy of Driving
license of said Mahinder Kumar was also annexed. Copy of Driving
license was marked as Mark A. Computer generated certified copy of CDR
of mobile no. 9818096206 from 01.10.2015 to 20.10.2015 consisting of 5
sheets was exhibited as Ex. PW4/B (colly). Certificate U/s 65B of
Evidence Act qua aforesaid electronic evidence was exhibited as Ex.
PW4/C. PW4 also brought location chart, which was exhibited as Ex
PW4/D. The said witness was not cross-examined by the Ld. Legal Aid
Counsel for accused.
17. PW5: SI Swadesh Kumar is the Duty Officer. He deposed that
on 18.10.2015, he was working as Duty Officer from 8 pm of 18.10.2015
to 8 am of 19.10.2015 and during his duty hours at about 12.11 am, he
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received a PCR call and on its basis he recorded DD No. 3A which is
Ex.PW5/A. PW5 produced the original DD register. This DD No. 3A was
assigned to SI Suresh Pal. PW5 further deposed that he also informed the
SHO and Inspector Dhan Singh ATO about this call. Inspector Dhan Singh
departed from the PS for the spot vide same DD entry. PW5 deposed that
on 19.10.2015 at about 2.30 am, Ct. Prahladh produced before him a rukka
sent by Inspector Dhan Singh, on the basis of which he got registered the
present FIR No. 195/15. PW5 produced the FIR Book. Copy of FIR No.
195/15 was exhibited as Ex PW5/B. He further deposed that he issued
certificate under Section 65B of Evidence Act, which was exhibited as Ex
PW5/C. He also deposed that he appended his endorsement Ex PW5/D
about recording of DD No. 7A and 9A, on the rukka Mark A. He further
deposed that after registration of FIR, original rukka and copy of the FIR
were given to Ct. Prahladh for handing over the same to Inspector Dhan
Singh for investigation. This witness has been cross-examined by the Ld.
Legal Aid Counsel for accused.
18. PW6: Suresh Rajvanshi, husband of deceased deposed that the
deceased namely Kaushalya Devi was his wife and she used to do the
labour work in preparation of silver foil in the area of Khari Baoli. He
further deposed that it was 18th day of the month of the year 2015 but he
does not remember the month and it was day of Dushera festival when his
wife left the house for her job. He further deposed that she did not return
till evening. He further deposed that he thought that due to Dushera, she
might have to work late night and would come around midnight. He
further deposed that in the next morning, police came to his house
accompanied by Mahender, one shopkeeper. He further deposed that police
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told him that his wife had been murdered. He further deposed that he
accompanied the police to police station Chandni Chowk and thereafter,
police took him to mortuary where the dead body of his wife was shown to
him and he identified the same as of his wife. He further deposed that his
statement was recorded, which was exhibited as Ex.PW6/A. He further
deposed that after post-mortem on the dead body of his wife, the body was
handed over to him. He further deposed that police recorded his statement.
19. During examination-in-chief, one photograph Ex.PW2/C was
shown to PW6, who identified the same to be of his wife.
20. During the course of examination-in-chief, Ld. Addl. PP
cross-examined PW6 with Court’s permission. In such cross-examination,
he admits that the police showed him one Aadhar Card of Maqbool i.e.
accused and he identified him as he used to go in the area of Vakilpura
during his working hours for taking tea and there accused used to meet
him. Aadhar Card of accused was shown to the witness by the police and
he correctly identified the accused. This witness has been cross-examined
by Ld. Legal Aid Counsel for accused.
21. PW7: Sh. Mahender Kumar deposed that he has been running
a kirana shop bearing no. 1325, Gali Guliyan, Daribakalan, Delhi. He
deposed that he knew Maqbool as he used to work as a labourer near his
shop. He further deposed that he used to call Maqbool whenever he
required a person for labour work. He further deposed that around 7 years
ago, he provided one mobile sim to said Maqbool on his address. During
testimony, PW7 correctly identified the accused Maqbool present in the
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Court. He further deposed that on 20.10.2015, police came to his house
and inquired about the user of the SIM which was in his name. He further
deposed that he told police that the said SIM was being used by Maqbool.
He further deposed that he does not remember the contact number of the
said SIM.
22. During examination-in-chief of PW7, phone book of his
mobile phone was shown and he stated that the said SIM was having
number as 9818096206. Police also showed him one photo of one
deceased lady to which PW7 stated that he does not know the name of the
said lady but knew her by her face as she was residing at H. No. 1281,
Vakilpura, Gali Guliyan, Dariba Kalan. He further deposed that he took the
police to H. No. 1281 where the husband of deceased met and he identified
said photograph to be his wife. He further deposed that police recorded his
statement at his shop in this regard. This witness/ PW7 was cross-
examined by Ld. Legal Aid Counsel for accused.
23. PW8: Sh. Dharmender Kumar (son of deceased) deposed that
the deceased Smt. Kaushalya Devi was his mother and she used to work as
a labourer. He further deposed that lastly, she left the house on 18.10.2015
for her work and did not return. He further deposed that in the intervening
night of 19-20.10.2015, police came to his house and shown him and his
father, photo of his mother and he identified her. He further deposed that
upon the asking of police, on 20.10.2015, he visited the mortuary at
Maulana Azad Medical College and identified dead body of his mother
Smt. Kaushalya. PW8 also identified his mother from the photograph Ex.
PW8/A. After postmortem, dead body was received by him and his father
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vide receipt already Ex PW6/B. The said witness has been cross-examined
by Ld. Legal Aid Counsel for accused.
24. PW9: HC Arun Kumar deposed that on 19.10.2015, he was
serving as Constable and working as photographer in the Mobile Crime
Team, Central District. He further deposed that on that day, in pursuance of
a call, he alongwith SI Pankaj Kumar, Incharge, Mobile Crime Team and
Ct. Devi Sahai, Fingerprint Proficient reached at the spot where IO
Inspector Dhan Singh met them. PW9 deposed that he saw one lady, aged
about 35-40 years, lying dead in room no. 4 of the Guest house. He further
deposed that blood was oozing from the nose and mouth of said lady. He
further deposed that one pink colour chunni was found tied around her
neck, the knot being at the back side. He further deposed that some
belongings i.e. apparels and lady purse alongwith food material were also
found lying in the room. He further deposed that on the instructions of the
IO, he clicked 18 photographs of the spot i.e. inside and outside the room,
got them developed and given to IO. He further deposed that he has seen
said photographs in the Court file. Photographs from the judicial file were
exhibited as Ex PW9/A1 to Ex PW9/A18. Witness brought 18 negatives of
the said photographs and placed the same on record as Ex PW9/B1 to Ex
PW9/B18. This witness has been cross-examined by Ld. Legal Aid
Counsel for accused.
25. PW10: Ct. Rajiv deposed that on 18.10.2015, he was on duty
at Channel no. 127 of Police Control Room at Head Quarter from 8 pm to
8 am of 19.10.2015. He further deposed that during his duty hours he
received a call at 00:09:19 to the effect that at H. No. 953, Gali Shyam Lal,
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Jama Masjid, Guest House Amrina, a lady was murdered. He further
deposed that said call was transmitted to Command Room, PCR and from
there call was transmitted to PCR Van and to concerned Police Station.
Form-1 containing the said information generated from the computer was
exhibited as Ex PW10/A. The said witness has been cross-examined by Ld.
Legal Aid Counsel for accused.
26. PW11: Inspector Pankaj deposed that on 19.10.2015, he was
serving as Sl at Crime Team, Central District. On that day, in pursuance of
a call from Control Room, he alongwith Ct. Devi Sahay, Fingerprint
Proficient and Ct. Arun, photographer reached the spot where IO Inspector
Dhan Singh was found present with his staff. He further deposed that he
inspected Room no. 4 of the above Guest House and one dead body of a
female was found lying on a bed in the room. He further deposed that one
chunni was found wrapped around the neck of the deceased and blood had
oozed out of her mouth and nose. He further deposed that the photographer
member of the team took the photographs of the scene of crime. He further
deposed that Ct. Devi Sahay lifted five chance prints from the room as well
as the attached bathroom. He further deposed that after inspection, he
prepared his report Ex PW11/A and handed over the same to the IO. This
witness was cross-examined by Ld. Legal Aid Counsel for accused.
27. PW12: Ct. Prahladh deposed that on 19.10.2015, he was
serving as Constable at PS Jama Masjid. He further deposed that on that
day, on receipt of DD No. 3A at about 12.15 am (night), he alongwith
Inspector Dhan Singh, SI Suresh Pal, Ct. Rahul, Lady HC Sudha and Ct.
Fakruddin reached at Amrina Guest House. He further deposed that in
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Room No. 4, one lady was found lying dead on the bed. He further
deposed that one dupatta was found wrapped on the neck of deceased. He
further deposed that Inspector Dhan Singh called Crime Team and got
inspected the spot. He further deposed that Inspector Dhan Singh lifted
exhibits from the spot. He further deposed that the dead body was sent to
mortuary through HC Sudha.
28. PW12 further deposed that thereafter, Inspector Dhan Singh
prepared a rukka and handed over to him for registration of FIR, which he
took to police station and got the FIR registered the FIR and brought copy
of FIR and original rukka to spot and handed over the same to Inspector
Dhan Singh. He further deposed that thereafter, IO recorded his statement
at the police station. This witness was cross-examined by Ld. Legal Aid
Counsel for accused.
29. PW13: Retired SI Suresh Pal deposed that on 18.10.15, he
was posted at P.S. Jama Masjid. He further deposed that in the intervening
night of 18/19.10.2015, he was on emergency duty. He further deposed that
during the duty hour on the said night, on receipt of DD No. 30A, he along
with Ct. Fakruddin, he had gone for inquiry about the information recorded
in DD No. 30A. He further deposed that then at about 12:15 am, in the
night the Duty Officer told him on his mobile phone that a murder of a
lady had been committed in Amrina Guest House, Jama Masjid. He further
deposed that in pursuance of the said information, he alongwith Ct.
Fakruddin reached Amrina Guest House. He further deposed that in the
Guest House, the Manager namely Mohd. Aslam met them. He further
deposed that in the meantime, ATO Inspector Dhan Singh also reached
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there with the staff including a lady Ct. Sudha and Ct. Prahlad. He further
deposed that the said Manager led them to the room no. 4 of the said Guest
House at Ground Floor, there he saw one dead body of a lady lying on the
bed. Inspector Dhan Singh called the Crime Team at the spot and got the
spot inspected and after the inspection and taking of photographs of the
scene of occurrence, the dead body was sent to mortuary at Maulana Azad
Medical College.
30. PW13 further deposed that thereafter, Inspector Dhan Singh
prepared rukka and sent it to PS through Ct. Prahlad for registration of
FIR. He further deposed that one Tariq, the owner of the guest house also
reached there. He further deposed that leaving behind him along with the
said Tariq and one technician Irshad at the spot, Inspector Dhan Singh left
for the mortuary. He further deposed that the technician checked the
recording of CCTV footage of the DVR installed inside the guest house, in
his presence. He further deposed that he had also seen the footage of
CCTV. He further deposed that the manager of guest house shown him the
Aadhar Card of the person who came to the guest house with the deceased
lady and booked the room no. 4. He further deposed that one person along
with the deceased lady was seen in the CCTV footage and the said person
was the same person whose photo was affixed on the Aadhar Card which
was deposited of the said person with the Manager of Guest House. He
further deposed that Inspector Dhan Singh returned to the spot. He further
deposed that the technician copied the CCTV footage in a Pen Drive and
then he gave the DVR along with the Pen Drive to IO Inspector Dhan
Singh who sealed the DVR in a parcel with the seal of JM-II and seized the
same through seizure memo already Ex. PW1/A. He further deposed that
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his statement was recorded.
31. During further examination of PW13, MHC(M) produced one
sealed parcel lying sealed with seal of court and bearing particulars of the
case. Parcel was opened and from it, one DVR already Ex.P1 was taken
out and shown to the witness and witness stated that this was the same
DVR, which was seized from the Guest House by the IO in his presence.
DVR was exhibited as already Ex.P1.
32. During examination of PW13, one DVD available on court
file, bearing particular of FSL and containing the copy of relevant data of
channel 01 and channel 02 of Ex.1 sent by FSL was put in the CPU and
played and the footage and shown to the witness. In the footage bearing
file No. 2094342-MP4 time: 9:50 am (Channel No. 2) and file No.
1094342-MP4, time 9:50 am, (Channel No. l) the accused Maqbool
alongwith the deceased are seen while entering in the Ameena Guest
House. PW13 deposed that the deceased can be seen clearly in the footage
walking behind the accused and entering the guest house wearing white
colour kurta and yellow colour pajami, carrying one ladies bag. The file
No. 2094342-MP4 time: 9:50 am (Channel No. 2) and file No. 1094342-
MP4, time 9:50 am, (Channel No. l) bearing the aforesaid footages were
exhibited as Ex-PW13/A1 & Α2. PW13 further deposed that in the footage
bearing file No. 2140342 MP4, time 2:00 pm (Channel No.2) the accused
Maqbool wearing white colour pant and shirt and gamcha on his shoulder
seen bolting the door of a room from outside and going out from the guest
house. The footage bearing file No. 2140342 MP4, time 2:00 pm (Channel
no. 2) was exhibited as Ex-PW13/A3. This witness was cross-examined by
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Ld. Legal Aid Counsel for accused.
33. PW14: Ct. Kamal deposed that on 19.05.2015, he was serving
as Constable at Police Station Jama Masjid as motorcycle rider-operator to
IO namely Inspector Dharam Singh. He further deposed that on that day,
Inspector Dharam Singh received a call regarding murder and thereafter,
he along with IO went to the spot i.e. 953, Gali Shayam Lal Bazar, Amrina
Guest House, Matia Mahal, Delhi. He further deposed that in room no.4 of
Amrina Guest House, dead body of lady was found on bed. He further
deposed that one yellow chunni was tightly wrapped in her neck and blood
was oozing out from her nose, her tongue was also coming out and same
was between her teeth. He further deposed that there was one purple colour
ladies bag on the bed in which a red comb, one steel box, roties in
polythene were lying. He further deposed that a pair of black colour plastic
sleepers were also lying there under the bed. He further deposed that IO
seized one Aadhar card vide seizure memo (already Ex.PW2/A), visitor’s
register vide seizure memo (already Ex.PW2/B), ladies bag vide seizure
memo Ex.PW14/A, plastic sleeper vide memo Ex.PW14/B and one lock
and key vide seizure memo Ex. PW14/C.
34. PW14 further deposed that thereafter, IO sent the dead body in
his possession to Maulana Azad mortuary and returned after sometime
alongwith husband and son of the deceased. He further deposed that both
of them identified the deceased and their statements were recorded. He
further deposed that post mortem of the dead body of deceased was
conducted and after post mortem, dead body was handed over to husband
of the deceased namely Suresh Rajvanshi. He further deposed that the
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concerned doctor has also handed over exhibits to the IO which were taken
into possession vide seizure memo Ex.PW14/D. He further deposed that
thereafter, they came back at the police station where case property were
deposited in the malkhana. He further deposed that IO recorded his
statement. This witness was cross-examined by Ld. Legal Aid Counsel for
accused.
35. PW15: ASI Mustaq Khan deposed that on 19.10.2015, he was
posted as HC at PS Jama Masjid. He further deposed that on that day, he
along with SI Sushil Kumar, and Ct. Rahisuddin went to Village Tigda
Mazra Atola, Sitapur, UP in search of accused wanted in this case and
initially they reached at Kotwali Sitapur, UP where it was revealed that the
said Village Tigda Mazra Atola falls within the jurisdiction of P.S
Rampura, Mathura. He further deposed that thereafter, they went to PS
Rampura, Mathura and there, they got made their arrival entry in the DD
register. He further deposed that from the police station, they went to Tigda
Mazra Atola i.e. the village of accused Maqbool. He further deposed that
in the said village, the house of said Maqbool was found locked. He further
deposed that during the local enquiry in the village, it was revealed that
accused Maqbool had gone to some village of the relative for bringing his
children and he would come soon on the same day. He further deposed that
they waited for the accused there. He further deposed that it was 20th
October, 2015, at about 4:30 p.m, one person opened the lock of the house
of the accused then they apprehended the said person, whose name after
inquiry was revealed as Maqbool. He further deposed that SI Sushil Kumar
made enquiry from said Maqbool about the occurrence and then he was
arrested in this case vide arrest memo Ex.PW15/A. SI Sushil prepared the
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personal search memo, which was exhibited as Ex.PW15/B. He further
deposed that IO interrogated the accused and recorded his disclosure
statement which was marked as Mark PW15/A. He further deposed that
they brought the accused to Police Station Jama Masjid. He further
deposed that his statement was recorded. PW15 correclty identified the
accused present in the court on that day. This witness was cross-examined
by Ld. Legal Aid Counsel for accused.
36. PW16: HC Tribhuvan deposed that on 18.10.2015, he was
posted at police station Jama Masjid. He further deposed that he was on
patrolling duty on motorcycle from 8 p.m to 8 a.m of 19.10.2015. He
further deposed that during his duty hours at about 5:00 a.m, Duty Officer
gave him the special report, i.e. the copy of FIR to deliver the same to the
Ilaqa Magistrate and senior police officers, which he did. The special
report i.e. copy of FIR NO.195/15, P.S.Jama with endorsement “seen at
6:00 a.m on 19.10.2015”, at point A, which he delivered to the Magistrate
on 19.10.2015 was exhibited as Ex. PW16/A. This witness was cross-
examined by Ld. Legal Aid Counsel for accused.
37. PW 17: SI Sushil Kumar deposed that on 19.10.2015, he was
posted at PS Jama Masjid and IO Inspector Dhan Singh directed him to
search the accused wanted in this case at his native place village Tigra
Mazra, Sita Pur, U.P. In pursuance of the directions of the IO, he along
with HC Mustak and Ct. Raisuddin went to village Tigda Mazra, Sita Pur,
U.P in search of the accused Maqbool, whose name was already revealed
to him through his Aadhar card which was shown to him by Inspector
Dhan Singh. He further deposed that initially they reached at Sitapur police
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station. He further deposed that there he came to know that the address of
accused Maqbool i.e. village Tigda Mazra, had fallen in the area of PS
Rampur, District Mathura, U.P. and then they reached at PS Rampur. He
further deposed that from the police station, they visited the village Tigra
Mazra and there the house of accused was found locked. He further
deposed that on inquiry, it was revealed that he had come to his house prior
one day of his visit and he had gone to some neighbouring village to meet
some of his relatives. He further deposed that thereafter, they stayed near
the house of accused and waited for him. He further deposed that on the
same day i.e. on 20.10.2015 at about 4:30 p.m, he observed the lock of
house of the accused opened and then they raided the house of the accused
and there accused Maqbool was found present. He further deposed that he
made inquiry about involvement of accused in this case and after having
satisfaction about his involvement in the case, he arrested him in this case.
Accused Maqbool was correctly identified by PW17 in the court during
testimony. He further deposed that he prepared arrest memo of the accused
(already Ex.PW15/A) and conducted personal search and prepared memo
Ex.PW15/B. He further deposed that he interrogated the accused and
recorded his disclosure statement (already Ex.PW15/A). He further
deposed that thereafter, they brought the accused to Delhi on 21.10.2015
however during the return journey, they met with an accident in the area of
Kavi Nagar, Ghaziabad and accused had suffered grievous injury upon
him. He further deposed that the accused was medically examined in the
hospital. He further deposed that after medical examination, he took the
accused to police station and there he produced him before the IO
Inspector Dhan Singh who took over his custody. He further deposed that
he brought the accused in muffled face. He further deposed that he also
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handed over documents prepared by him to the IO. He further deposed that
the items recovered on the personal search of the accused were deposited
in the malkhana. The said witness was cross-examined by Ld. Legal Aid
Counsel for accused.
38. PW18: Ct. Ravinder Kumar deposed that on 05.01.2016, he
was posted at PS Jama Masjid. He further deposed that on that day, he
joined the investigation along with Inspector Dhan Singh in the present
case and went to Court No. 252, Tis Hazari Courts where IO moved the
application before the court concerned for blood sampling of the accused
and after taking permission of the court, they took the accused to Aruna
Asaf Ali hospital Casualty where blood sample of accused was taken and
two glass bottles were sealed with the seal of hospital along with sample
seal along with MLC. He further deposed that IO seized the same vide
seizure memo Ex.PW18/A. He further deposed that thereafter, they
returned to the lock up and handed over the accused to lock up Incharge.
The IO deposited the above said exhibits in the malkhana. He further
deposed that IO recorded his statement. He further deposed that on
07.01.2016, on the instructions of the IO, he collected the exhibits along
with the FSL form and sample seal from MHC(M) and same was deposited
in FSL, Rohini vide RC nos. 2/21/16 and 3/21/16 which are Mark PW18/B
and C and their receiving acknowledgments are Mark PW18/D & E. He
further deposed that the same was handed over to MHC(R). He further
deposed that the above said exhibits were not tampered by him and any
other person as long as remained in his possession. The said witness was
cross-examined by the Ld. Legal Aid counsel for the accused.
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39. PW19: ASI Adesh Kumar deposed that on 19.10.2015, he was
posted as MHC(M) at PS Jama Masjid. He further deposed that on that
day, one lady bag colour purple, one tiffin, one comb, one pair of plastic
chappal black colour and one lock and key (Harisson ANS) were deposited
in unsealed condition by Inspector Dhan Singh in connection with the
present case. He further deposed that on that day, one sealed pullanda
sealed with the seal of JM-2 was also deposited by Inspector Dhan Singh
along with 7 other pullandas along with their sample seals and those 7
pullandas were duly sealed with the seal of MAMC Mortuary Delhi. He
further deposed that one Visitor Register of Amrina Guest House was also
deposited in the malkhana. He further deposed that he had mentioned the
fact regarding the deposit of the said exhibits in the relevant column in the
register no.19. He further deposed that he recorded an entry no.1341 for
the same in register no.19. The witness brought register no.19 and a copy
of which was exhibited as Ex.PW19/A (running into five pages). He
further deposed that he has mentioned the details of the exhibits deposited
in the said entry as per the contents of the seizure memos.
40. PW19 further deposed that on 04.12.2015, the viscera box was
sent to FSL through Ct. Shakit Hussain vide RC No.61/21/15 and the
report regarding this was received on 08.08.2016 which was handed to IO/
Inspector Dhan Singh. He further deposed that he made endorsements in
the relevant column to the said effect against the said entry at point A and
Al respectively. The witness/ PW19 brought the RC register and copy of
the RC No.61/21/15 was exhibited as Ex.PW19/B (OSR).
41. Regarding DVR, PW19 deposed that on 07.01.2016, the
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pullanda having the DVR sealed with the seal of JM-2 and one sample seal
along with one FSL form were sent to FSL through Ct. Ravinder vide RC
No.2/21/16, copy of the said RC was exhibited as Ex.PW19/C (OSR). He
further deposed that on 07.01.2016, 08 sealed parcels along with sample
seals and FSL form were sent to FSL through Ct. Ravinder vide RC
No.3/21/16 and copy of the said RC was exhibited as Ex. PW19/D (OSR)
and note in this regard was recorded in register no.19 at point B. During
his further examination-in-chief, PW19 brought the original
acknowledgement receipt which was handed over by Ct. Sakid to him, the
copy of the same was exhibited as Ex. PW19/E (OSR). He further deposed
that on 16.11.2016, he received the FSL result through Ct. Manish and the
same was handed over to the IO on 18.11.2016. The said witness was
cross-examined by Ld. Legal Aid Counsel for accused.
42. PW20: Inspector Sh. Dhan Singh Sangwan was the IO who
deposed that on 19.10.2015, he was posted as Inspector at PS Jama Masjid
and was on night checking duty when he received DD No. ЗА regarding
murder of lady in Amrina Guest House. Upon reaching the spot i.e. House
No.953, Amrina Guest House, Shyam Lal Gall, Matia Mehal Bazar, Jama
Masjid, Delhi at about 12:30 AM alongwith other police staff, the Manager
of the Guest House Mohd. Aslam met him at the Guest House and told him
that a lady is lying dead in Room No. 4 of his Guest House situated at
ground floor. He further deposed that thereafter, he alongwith SI Suresh
Pal and Ct. Fakruddin entered the room No.4 and saw one lady aged about
35-40 years lying dead over the bed with blood oozing from her nose and
tongue between her teeth. He further deposed that he also noticed one
yellow colour stroll / Chunni was tied around her neck which was having a
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knot from back side of the neck. He further deposed that he saw one purple
colour lady bag was also lying on the bed. He further deposed that upon
checking the lady bag, he found the same was containing one lunch box
and one comb. He further deposed that he noticed one pair plastic slippers
also lying near the bed.
43. IO / PW20 then called the Mobile Crime Team which arrived
and inspected and clicked photographs of the spot on his direction. He
further deposed that he interrogated Guest House Manager namely Mohd.
Aslam who told him that on 18.10.2015, at about 8 AM, said lady came at
his Guest House alongwith one person namely Maqbool and said Maqbool
booked Room No. 4 of his Guest House and paid Rs.600/- as Guest House
charge and said Maqbool handed over his Adhar Card to him as his ID
proof and told that said lady is his wife and he will produce her ID proof
later on. He further deposed that Guest House Manager Mohd. Aslam told
him that he did not make entries in the Visitor Register as accused
Maqbool could not provide ID proof of said lady. He further deposed that
Guest House Manager also told him that accused Maqbool had given his
mobile number to him at the time of booking of Room. PW20 further
deposed that Guest House Manager then told him that accused Maqbool
left Room No.4 at about 2:30 PM and he did not come back at the Guest
House despite being contacted at 8pm on mobile upon which accused
replied that he got stuck in Ram Leela crown and would come shortly and
later his phone was found switched off. Guest House Manager Mohd.
Aslam further told IO / PW20 that on suspicion, when he checked the
Room No.4 he saw a lady was lying dead on the bed upon which he
informed his guest house owner regarding the death and the owner called
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100 number.
44. PW20 further deposed that he then prepared Rukka on the
basis of DD Entry no. 3A dated 19.10.2015 which was exhibited as Ex.
PW20/A (earlier marked as Mark A) and handed over the same to Ct.
Prahlad for the registration of FIR who took the Rukka to the police
station, got the present FIR registered and came back at the spot alongwith
copy of FIR and original Rukka and handed over the same to him. Original
copy of DD Entry No. 3A was exhibited as Ex. PW20/B. He further
deposed that before preparation of Rukka, Police Post Incharge SI Mohd.
Inam alongwith police staff also came at the spot. Thereafter dead body of
deceased was sent to the Mortuary of Maulana Azad Medical College
under the custody of SI Inam and Ct. Kamal.
45. PW20 further deposed that he checked the footage of CCTV
Cameras installed at the Guest House in the presence of SI Suresh Pal and
he saw entry of accused Maqbool alongwith deceased lady in the room and
also saw accused Maqbool while leaving the Guest House in CCTV
footage. During testimony, PW20 correctly identified the accused in the
Court to be the person seen in CCTV footage of Amrina Guest House who
entered in the Guest House alongwith deceased lady and was being seen
leaving the Guest House at about 2:30 PM on 18.10.2015.
46. PW20 further deposed that he seized one pair of plastic
Chappal make of “NICE DAY H-02” vide seizure memo already exhibited
as Ex.PW14/B, one lady bag containing lunch box (steel) and one comb in
red colour from the spot vide seizure memo already exhibited as
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Ex.PW14/A, one lock make ‘Harrison’ alongwith its key in open condition
vide seizure memo already exhibited as Ex.PW14/C, original Aadhar Card
of accused Maqbool handed by Manager Aslam vide seizure memo already
exhibited as Ex.PW2/A, Visitor Register handed by Manager Aslam vide
seizure memo already exhibited as Ex. PW2/B.
47. PW20 further deposed that on his asking, Guest House
Manager Mohd. Aslam called his CCTV Camera technician namely Irshad,
at the Guest House who firstly downloaded /copied CCTV footage dated
18.10.2015 in Pen Drive and thereafter he extracted DVR from the
machine. He further deposed that the DVR was of make ‘Divine Eye’.
PW20 prepared pullanda of DVR containing Hard Disk and sealed the
same with the seal of JM-2 and took the same to police possession vide
seizure memo already exhibited as Ex.PW-1/A. He further deposed that he
prepared rough site plan of the place of incident at the instance of Manager
Aslam which is exhibited as Ex.PW20/B and that of the Guest House
Manager Mohd. Aslam at point B. He further deposed that he recorded
statements of witnesses at the spot U/S 161 Cr.P.C. He further deposed that
thereafter, he came back at Police Station and deposited case property
/seized articles in the Malkhana. He further deposed that thereafter, on the
direction of the then SHO PS Jama Masjid he handed over the photocopy
of Aadhar Card of accused to SI Sunil Kumar, who alongwith other police
staff went to Sita Pur, UP in the search of accused Maqbool. He further
deposed that during course of investigation, he obtained subscriber form of
the mobile sim card of accused and came to know that sim card was issued
in the name of Mahender Kumar, a shopkeeper. He further deposed that
thereafter, he interrogated Mahender Kumar wherein he told him that
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accused Maqbool was working at his shop and he got issued a SIM card in
his name and handed over the same to Maqbool for temporary use and that
Maqbool was residing in the area of Wakeel Pura. PW20 deposed that
thereafter, he made effort to search accused Maqbool in the area of Wakeel
Pura but he could not be found. He further deposed that during search, he
showed photograph of deceased lady to the public persons and thereafter
he came to know through public persons that the name of deceased lady
was Kaushalya and she was wife of Suresh Rajvanshi residing in Wakeel
Pura, House No.1281. He further deposed that thereafter, he reached at the
house of Suresh Rajvanshi where Suresh Rajvanshi alongwith his son and
daughter met him and after showing photograph of deceased lady, they
identified the deceased as his wife and his/her mother. He further deposed
that thereafter, he took both of them to the Mortuary where they identified
the dead body and accordingly he recorded their dead body identification
statement Ex. PW20/C and the statement of husband of the deceased lady
was exhibited as Ex.PW6/A. He further deposed that thereafter, he filled a
form No.25.35 (1)(B) for post mortem examination on deadbody of
deceased, which was exhibited as Ex.PW20/D (running in two pages). He
further deposed that after postmortem examination of dead body of
deceased, he handed over the dead body to her husband and son for
performing last rites vide handing over memo which was already exhibited
as Ex.PW6/B.
48. PW20 further deposed that on 19.10.2015, concerned Doctor
handed over 07 exhibits taken from the deadbody of deceased to him in
sealed condition duly sealed with the seal of MAMC AB10 i.e. Viscera
Box, nail clipping of both hands of deceased, ligature material, blood
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sample, swabs etc. which he took into police possession vide seizure
memo which was already exhibited as already Ex.PW14/B and deposited
them in Malkhana pf PS. At that time, Ct. Kamal was accompanying him
in the investigation. He further deposed that on 21.10.2015, SI Sushil
alongwith police staff and accused Maqbool came to police station and SI
Sushil handed over all the documents to him pertaining to accused which
were prepared by him. Accused was then taken to the place of incident
House No.953, Amrina Guest House, Room No.4, where pointing out
memo was prepared at the instance of the accused which was exhibited as
Ex.PW20/E. Accused was taken to the Hospital for his medical
examination and was produced before concerned Court in muffled face and
TIP application Ex. PW20/F was moved but the accused refused to
participate in TIP proceedings.
49. PW20 further deposed that vide request Ex. PW20/G, doctor
took blood sample of accused Maqbool in Aruna Asaf Ali Hospital vide
MLC of injuries marked as Mark PW20/H. He further deposed that
concerned Doctor handed over blood sample of accused in sealed
condition alongwith sample seal to him and he took the same into police
possession vide seizure memo already exhibited as Ex.PW8/A. He further
deposed that during course of investigation, he collected CDR, CAF and
Cell location of the mobile phone of the accused from concerned Cellular
Company and placed the same with charge sheet. He further deposed that
as per Cell location of mobile phone of the accused, his presence was
found near the Guest House i.e. place of incident. He further deposed that
during course of investigation, he got deposited exhibits collected by him
and handed over by Doctors, CDR alongwith Hard Disk, FSL through Ct.
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Ravinder, Ct. Saqir Hussain and Ct. Kamal. He further deposed that during
course of investigation, he recorded statement of witnesses, placed relevant
documents with charge sheet and on the completion of investigation, he
prepared charge sheet. He further deposed that he filed FSL result in the
Court after obtaining the same from FSL, which was marked as Mark
Ex.PW20/1 (running in two pages and Ex.PW20/J (running in two pages).
50. During testimony, IO/ PW20 correctly identified case
properties such as original Aadhar Card of accused (already Ex. P1), one
lady hand bag exhibited as Ex. PW20/X1, Chunni exhibited as
Ex.PW20/X2, parcel containing nail clippings exhibited as Ex.PW20/X3
and Ex.PW20/X4, Visitor’s register already Ex. P2 and duplicate copy of
the FSL result filed on 28.01.2022 in respect of exhibits/ materials which
he collected during course of investigation and deposited with FSL Rohini
for expert opinion. IO / PW20 was cross-examined by Ld. Defence
Counsel.
51. PW21: Ms. Anita Chhari, Senior Scientific Officer (Bio) FSL,
Delhi deposed that on 07.01.2016, 8 sealed parcels alongwith sample seal,
were received at the office of FSL Delhi in respect of case FIR No.
195/2015 dated 19.10.2015 under Section 302 IPC, PS Jama Masjid,
Delhi. PW21 further deposed that said parcels were marked to her and out
of 8 parcels, three parcels were sealed envelope, three were cloth parcels
and two were sealed plastic containers. PW21 further deposed that she
tallied seal of aforesaid sealed parcels with sample seal and found the same
were intact. PW21 further deposed that upon opening, she found that
parcel no.1 was containing Ex.1 i.e. nail clipping, parcel no.2 were found
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containing Ex.2 i.e. nail clipping, parcel no.3 was found Ex.3 i.e. pieces of
Chunni alongwith hair having brown stains, parcel no.4 were found Ex.4
i.e. brown gauze cloth piece wrapped in a paper, parcel no.5 was found
containing Ex.5a i.e. the dirty yellowish cotton wool swab on wooden stick
kept in plastic tube labelled as low Vaginal, Ex.5b i.e. the dirty yellowish
cotton wool swab on wooden stick kept in plastic tube labelled as high
Vaginal, Ex.5c i.e. the dirty yellowish cotton wool swab on wooden stick
kept in plastic tube labelled as rectal. PW21 further deposed that Parcel
No.6 was found containing exhibits 6a i.e. one Pajami, 6b i.e. one lady
shirt having brown stains, 6c one brassiere, 6d one bed sheet having dirty
brown stains, 6e one bed sheet having few brown stains. PW21 further
deposed that Parcel no.7 was found containing Ex.7 i.e. dark brown foul
smelling liquid kept in an injection vail containing blood sample of
accused. PW21 further deposed that Parcel no.8 was found containing one
sealed cloth parcel with seal of CMO A & E, AAA Government Hospital
containing blood sample (NaFI) of accused, the same was returned in
original without examination as blood sample of accused was given in
Sodium Floride i.e. not required for DNA examination. PW21 further
deposed that after detailed examination of aforesaid exhibits, she reached
at following conclusion i.e. The DNA profiling STR Analysis performed
on exhibit ‘3’ (Chunni), exhibit ‘4’ (Blood gauze of deceased), exhibit ‘6b’
(Lady’s shirt of deceased), exhibit ‘6d’ (Bedsheet) & exhibit ‘be’ (Bedsheet)
provided is sufficient to conclude that the Blood stains present on the
exhibit ‘3’ (Chunni), exhibit ‘6b’ (Lady’s shirt of deceased), Exhibit ‘6d’
(Bedsheet) & Exhibit ‘6e’ (Bedsheet) are similar with the source of exhibit
‘4’ (Blood gauze of deceased). PW21 further deposed that she prepared her
detailed examination report alongwith allelic data which was exhibited as
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Ex.PW21/A (running in four pages). PW21 further deposed that she gave
duplicate/copy of her original report to the police on the request of
Additional Deputy Commissioner of Police, Central District after attesting
the same. This witness was cross-examined by Ld. Defence Counsel.
52. PW22: Dr. Bharti Bharadwaj, Senior Scientific Officer
(Physics), FSL, Rohini, Delhi deposed that on 07.01.2016, one sealed cloth
parcel was received at the office of FSL, Rohini alongwith specimen seal
vide forwarding letter and FSL form through Ct. Ravinder, No.2019/C.
PW22 further deposed that the said parcel was marked to her for
examination. PW22 further deposed that she tallied seal of said parcel with
specimen seal and found the same was intact. PW22 further deposed that
she opened the parcel and found the same was containing Ex. 1 i.e. one
DVR make “Divine Eye” CCTV system having one hard disk make of WD
of capacity of one TB. PW22 further deposed that she examined video files
of relevant date and time containing Ex.1 and observed that video files
contain one identified video shot. PW22 further deposed that she found
there was no indication of any alteration in identified said video shot on
the basis of frame by frame examination. PW22 further deposed that she
prepared four photographs Mark 1 to 4 from said video shot and provided
the same to police alongwith her report and, thereafter exhibits were sent
for examination, were resealed with the seal of Dr. B.B. – FSL Delhi and
returned to the police. PW22 further deposed that her examination report
(earlier marked as Mark PW20/1) was exhibited as Ex. PW22/A.
53. During further examination of PW22, photographs were
shown to her and she stated that she had extracted and developed said
photographs from DVR and she also put her initial/ signature on the back
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page of each photographs and mentioned case particulars. Photographs
were exhibited as Ex. PW22/P1 to P4. PW22 further deposed that she had
provided aforesaid photographs to the police in said envelope and she also
kept her examination report alongwith said photographs in the said
envelope. PW22 further deposed that on 02.11.2016, one sealed envelope
was received at the office of FSL, Rohini, Delhi alongwith specimen seal
through Inspector Dhan Singh. PW22 further deposed that said envelope
was marked to her for examination. PW22 further deposed that said parcel
was sealed with her seal i.e. Dr. B.B.-FSL, Delhi at five places which she
re-sealed on 18.10.2016. PW22 further deposed that she tallied seal of the
said parcel with specimen seal and found it was intact.
54. During the examination-in-chief of PW22, said parcel, upon
opening, was found containing one DVR make of “Divine Eye” CCTV
system having one hard disk make of WD capacity of 1 TB. PW22 further
deposed that she prepared four sets of DVD from the relevant Data of
DVR and provided the same to the police alongwith report which witness/
PW22 sealed with the seal of Dr. B.B.-FSL Delhi. The detailed report
prepared by PW22 was exhibited as Ex. PW22/B running into two pages.
55. During further examination-in-chief of PW22, one DVD
having mentioned FSL No.216/P18303/Phy-298/16, copy of relevant data
of Channel No.1 & Channel No.2 of Ex.1 (available on record) was taken
out and shown to the witness/PW22. PW22 further deposed that she had
provided data of said DVR in said DVD which bears her initial. DVD was
exhibited as Ex. PW22/P5. PE was thereafter closed.
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STATEMENT OF ACCUSED U/S 313 CrPC:
56. Examined under Section 313 of CrPC, accused either pleaded
ignorance about the incriminating evidence or denied the same as
incorrect. He claimed to be falsely implicated and took the following plea:-
“I am innocent and has been falsely implicated in the
present case by the police.”
57. In answers to almost all questions in which incriminating
evidences were put to the accused, he replied simply in the words such as
“It is incorrect”, “It is false”, “I do not know” and “I cannot say”.
58 Accused opted not to lead defence evidence. The matter
proceeded for arguments.
Arguments of Ld. Defence Counsel (LAC) :
59. Ld. Defence Counsel (LAC) for accused argued on various
aspects of the matter. With respect to CCTV footage, Ld. LAC argued that
Pen Drive in which the technician Irshad copied the CCTV footage has not
been produced in the Court. He further argued that the CCTV footage was
not saved while the police arrived and there is no footage after 2:30 PM of
18.10.2015.
60. With respect to testimonies of Owner/ PW1 and Manager/
PW2, the Ld. LAC contended that their testimonies are contradictory to
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each other on the point of recording of statement by the police. Further, he
also submitted that in the cross-examination of PW2, it has come that the
phone call to the police was made from his mobile by the guest house
owner at about 9 PM, while in the cross-examination of PW1, he stated
that he made PCR call at about 11 PM from the mobile phone of Manager/
PW2 and therefore, there is discrepancy in the testimonies of PW1 and
PW2 as regards the time of making call to the police regarding the
incident.
61. With regard to Visitor Register, Ld. LAC argued that there is
no arrival entry in the same. Ld. LAC also argued that the DD entry with
regard to PCR call was not produced in the evidence and what has been
produced is the DD entry no. 3A of 19.10.2015 at 00:11 mid night.
62. It was also argued by Ld. LAC as to why PW2/ Manager did
not call the police when he first saw the deceased through ventilator. Ld.
LAC also argued that lock and keys were never produced as case property
and this case property was not made part of charge-sheet. Ld. LAC also
contended that no relationship between the accused and deceased has been
proved and therefore, there is no occasion for the accused to have
murdered the deceased.
63. It was also argued on behalf of accused that IO Insp. Dhan
Singh is himself the complainant in the present case and carried out the
investigation and submitted the charge-sheet and thereby became self
determinative of the case.
64. As regards the time of death, Ld. LAC argued that
postmortem report opines that death might have occurred till 5 PM on
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18.10.2015 while the IO decided that the death might have occurred before
2:30 PM.
65. As to CDR, Ld. LAC submitted that the CDR of Manager/
PW2 has not been taken by the IO.
66. Ld. LAC has relied upon ruling titled as Annabelle Analista
Malibago Vs. DRI, 2018 (172) DRJ 506 of the Hon’ble High Court of
Delhi.
Arguments of Ld. Additional Public Prosecutor for the State :
67. Per contra, Ld. Addl. PP for the state argued that the rukka
was prepared on the first call i.e. DD no. 3A dated 19.10.2015 at 00:11 mid
night and therefore, IO is not the complainant.
68. As regards the time of death, it was argued on behalf of State
that as per postmortem report giving a window of 24 hours to 30 hours as
the time of death, the death of the victim occurred uptill 3:30 PM on
18.10.2015.
69. Ld. Addl. PP also argued that the Manager/ PW2 called the
accused many times even till 9:31 PM but the accused did not respond and
never returned to the guest house.
70. Ld. Addl. PP argued that the case is duly proved by
circumstantial evidence as the accused and deceased came to the guest
house in the morning of 18.10.2015 and the accused alone left the room of
the guest house in the afternoon and never returned back. It was further
argued that the evidence on record is established to the circumstance that
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the accused and the deceased were last seen together in the guest house as
the CCTV footage is clear on the point and the testimony of Manager/
PW2 remained intact and unblemished.
71. Ld. Addl. PP further argued that the conduct of the accused is
also to be very important to be noted as he left the guest house and never
returned back despite being telephonically contacted by Manager/PW2.
72. I have heard rival contentions and perused the record. For
appreciating the rival contentions, it would be apt to analyse the evidence
brought on record in detail to adjudicate, if the prosecution has been able
to prove its case beyond all reasonable doubts or whether accused deserves
to be acquitted in the present case?
Analysis :
73. As per prosecution case, the following circumstances exist and
are proposed to be proved against the accused in the present case:
1. The accused and the victim checked-in at room no.4 of Amrina
Guest House on 18.10.2015 at about 10 am;
2. The accused was seen exiting alone from the room of the
Guest House the same day at about 2 – 2:15 pm;
3. The victim was found dead in the room soon thereafter and
cause of death is homicidal in nature;
4. The accused fled away from the guest house and never
returned;
5. The accused and the deceased were last seen together in the
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guest house on 18.10.2015;
6. Identification of accused and deceased.
74. While appreciating the evidence on record, this court shall
now proceed with the case in hand and shall give findings with respect to
each of the circumstance which can help in arriving at the just decision of
the case.
Circumstance no. 1:
The accused and the victim (deceased) checked-in at room no.4 of the
guest house on 18.10.2015 at about 10 am.
75. Briefly, it is the case of the prosecution that the accused
alongwith the victim lady came at the Amrina Guest House and met the
Manager Mohd. Aslam at the reception. They booked a room and checked-
in during morning hours at about 10 am. The accused at that time furnished
only his ID and not that of the victim lady. Thereafter, at about 2- 2:15 pm,
the accused exited the room and told the Manager that he was going for
meals and would bring ID proof of the lady, but he never returned despite
being contacted on his mobile. Finally, when the Manager checked the
room he found the lady dead. Thereafter, the police was called.
76. To prove its case, prosecution examined numerous witnesses
including the Manager Mohd. Aslam as PW2. He is the star witness of the
prosecution since he is the one who attended the accused & victim when
they checked-in and also witnessed and countered the accused while he
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was going out alone from the Guest House.
77. In his testimony, PW 2 deposed that on 18.10.2015, when he
was present at the reception of Amrina Guest House, at about 10 am one
person alongwith a lady came and asked for a room. He further deposed
that room no. 4 at the ground floor, was allotted to them. He also deposed
that upon asking for their identities, the said male person (identified as
accused) gave his Aadhar card in original and also gave his phone number
while as regards the ID proof of the lady, the accused told him that at that
time he was not having her ID proof and that he would submit the same
when he goes for taking meals. PW2 deposed that he told the accused that
as and when he brings identity proof of the lady, he would make the entry
in the register regarding their arrival. PW2 also deposed that the name of
the said person was mentioned as Maqbool S/o Karim on the said Aadhar
Card.
78. PW2 identified the Aadhaar card Ex. P1 of the accused which
was seized by the police in his presence. PW2 also identified his signature
on the seizure memo Ex. PW2/A of the Aadhaar card. Police also seized
the visitor’s register through seizure memo Ex. PW2/B and PW2 identified
his signature on the same. During his deposition, PW2 correctly identified
the accused Maqbool present in the Court. PW2 also identified the victim /
deceased lady from her photograph Ex. PW2/C to be the lady whom the
accused brought to room no. 4 of the Guest House on 18.10.2015 and left
her in the room and was later found dead in that room.
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79. PW2 was cross-examined on behalf of the accused. In cross-
examination, PW2 was mainly asked about his not making any arrival
entry of accused & deceased in the visitor’s register of the guest house.
PW2 while admitting that he did not make any such entry, answered this
by stating that he left the same blank to fill up the column of identity of
deceased because the accused did not produce the ID of deceased and
promised to produce it later i.e. after taking meal and since the accused had
produced his identity proof, he allotted the room to him but without
making entry for want of ID proof of deceased. Thus, PW2 duly furnished
an explanation for allotting the room without making entry in the visitor’s
register, which appears to be a plausible explanation. PW2 maintained this
stand throughout his cross-examination. No other material question was
asked during cross-examination of PW2 challenging the arrival of accused
and deceased inside the Amrina Guest House or their checking-in at room
no.4. PW2 supported the prosecution case thereby maintaining the version
of his examination-in-chief while nothing came out in his cross-
examination which could successfully challenge such version.
80. In order to prove the seizure memo of Aadhaar card (Ex.
PW2/A) and visitor’s register (Ex. PW2/B), prosecution also examined Ct.
Kamal as PW 14. He deposed that he went to the spot alongwith IO. PW14
further deposed that IO seized one Aadhaar card vide seizure memo
Ex.PW2/A and also seized visitor’s register vide seizure memo Ex.PW2/B.
Even though PW14 admitted that his statement u/s 161 Cr.P.C. does not
record that he signed on these seizure memos, this in itself does not
discredit his testimony made in the Court.
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81. Apart from the ocular version of PW2, there is another
clinching piece of evidence which is the CCTV footage. PW13, Retd. SI
Suresh Pal was examined by the prosecution in this regard. PW13 is the
witness who firstly visited the spot as he was on emergency duty on the
intervening night of 18th & 19th Oct., 2015 and attended the call regarding
murder of the deceased. He deposed that upon reaching the guest house,
the manager Mohd. Aslam (PW2) met him. PW13 further deposed that he
checked the CCTV footage in which one person along with the deceased
lady was seen in the CCTV footage and the said person was the same
person whose photo was affixed on the Aadhar Card. PW13 deposed that
the IO sealed the DVR and seizure memo Ex. PW1/A was prepared which
bears his signature. PW 13 also identified the DVR produced in the Court
during his testimony. The footage was played in the Court during the
testimony of PW13 when he deposed that in the footage bearing file No.
2094342-MP4 time: 9:50 am (Channel No. 2) and file No. 1094342-MP4,
time 9:50 am, (Channel No. l), the accused Maqbool alongwith the
deceased are seen while entering in the Ameena Guest House. He further
deposed that the deceased can be seen clearly in the footage walking
behind the accused and entering the guest house wearing white colour
kurta and yellow colour pajami, carrying one ladies bag. In cross-
examination, PW13 was simply asked about when did he first see the
CCTV footage to which he replied that he saw the same in the Guest
House on 19.10.2015 alongwith the Guest House owner Mohd. Tariq
(PW1) and CCTV camera technician. Nothing further was put to this
witness PW13 in cross-examination except for a bald suggestion that the
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footages are tampered and that PW13 did not see any such footage in the
Guest House.
82. The Guest House owner Mohd. Tariq who was examined as
PW1 also identified the DVR and his signature on its seizure memo Ex.
PW1/A. He also deposed that he called the camera technician and the
CCTV footage was handed over to the police in his presence. The camera
technician Irshad though could not be examined as his address was not
traceable despite summons being issued, it does not make any difference as
the Guest House owner PW1 has already been examined and he testified
regarding the DVR. The argument of the Ld. defence Counsel from legal
aid that the Pen Drive in which the technician Irshad copied the CCTV
footage has not been produced in the Court has also not force since the
original source i.e. the DVR being primary evidence was seized by the
police and has been produced & played in the Court during the testimony
of PW13.
83. The DVR was sent for examination to FSL Rohini, Delhi. The
FSL report filed alongwith chargesheet is Ex. PW22/A. Dr. Bharti
Bharadwaj, Sr. Scientific Officer (Physics) from FSL was examined as
PW22 on her report. She deposed that no alteration is found in the video
shot on the basis of frame by frame examination. Some negative
suggestions were put to this witness but they yielded no result and thus
nothing could come on surface to doubt that the DVR or CCTV footage
were tampered with. PW22 further deposed that she had provided data of
said DVR in a DVD mentioning FSL No.216/P18303/Phy-298/16 which
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she exhibited as Ex. PW22/P5. In the course of preparing this judgment,
this Court also perused the CCTV footage from the aforesaid DVD. From
this CCTV footage in file bearing No. 2094342-MP4 time: 9:50 am
(Channel No. 2) and file No. 1094342-MP4, time 9:50 am, (Channel No.
l), the accused alongwith deceased are seen to be entering the room where
the incident took place. Thus, there remains no doubt that the accused and
the deceased entered the room of the Guest House.
84. From the appreciation of the testimonies of the
abovementioned witnesses, the circumstance that the accused and the
deceased checked-in at room no.4 of the Amrina Guest House on
18.10.2015 at about 9:50 am is duly established and proved on record.
Nothing in cross-examination of these witnesses could shake their
testimony or could bring about any contradiction in the prosecution case.
Circumstance no. 2:
The accused was seen exiting alone from the room of the Guest House the
same day at about 2 – 2:15 pm.
85. In order to prove this circumstance, prosecution has again
relied upon the testimony of the Manager PW2 who testified that he saw
the accused coming out of room no. 4 at about 2 – 2:15 pm and when he
asked him to furnish ID proof of the lady, the accused told that he was
leaving for meals and would bring the ID and submit the same. PW2 thus
testified to the fact that the accused alone left the room of the Guest House.
No question was asked to PW2 upon this aspect during his cross-
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examination.
86. Apart from the above ocular evidence, there is yet again the
clinching piece of evidence i.e. CCTV footage. PW13, Retd. SI Suresh Pal
was examined by the prosecution in this regard. PW13 is the witness who
firstly visited the spot as he was on emergency duty on the intervening
night of 18th & 19th Oct., 2015 and attended the call regarding murder of
the deceased. As already observed under circumstance no.1 above, PW13
testified that the accused and deceased entered the room at about 9:50 am.
Other aspects such as production of original DVR, identification of the
same by PW13, playing it in the Court during recording his testimony and
identification of accused seen in the footage from photo on his Aadhar card
etc. have already been observed as proved under circumstance no. 1
discussed above.
87. PW13 further deposed that the deceased wearing white colour
pant and shirt and gamcha on his shoulder is seen bolting the door of a
room from outside and going out from the guest house as per visuals in
CCTV file No. 2140342 MP4, time 2:00 pm (Channel No.2) Ex-PW13/A3.
As already noted, nothing material was put to this witness PW13 in cross-
examination except for a bald suggestion that the footages are tampered
and that PW13 did not see any such footage in the Guest House. This bare
suggestion however yields nothing. The visuals of the accused in the
CCTV footage have not been challenged during cross-examination.
88. The Guest House owner Mohd. Tariq who was examined as
PW1 also identified the DVR and his signature on its seizure memo Ex.
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PW1/A. He also deposed that he called the camera technician and the
CCTV footage was handed over to the police in his presence.
89. As already observed under circumstance no.1, the expert
witness from FSL Dr. Bharti Bharadwaj, examined as PW22, testified that
there is no alteration found in the video shot on the basis of frame by frame
examination. Thus, no tampering was found in the DVR or the footage.
90. In the course of preparing this judgment, this Court also
perused the CCTV footage in file bearing No. 2140342 MP4, time 2:00 pm
(Channel No.2) Ex-PW13/A3. The accused is seen to be exiting the room
alone.
91. From the appreciation of the testimonies of the
abovementioned witnesses, the circumstance that the accused was seen
exiting alone from the room of the Guest House is duly established and
proved on record.
Circumstance no. 3:
The victim was found dead in the room soon thereafter and cause of death
is homicidal in nature.
92. Here, the testimony of the star witness PW2 again assumes
importance. As discussed above, he is the one who attended the accused
and victim and allotted them room no. 4 in the morning of 18.10.2015. He
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also interacted with the accused while he was exiting alone from the room
at about 2 – 2:15 pm. As the accused had assured him to return with ID
proof of the lady after having meals from outside, he waited for some time
and then tried to contact the accused on mobile.
93. PW2 further deposed that since the accused did not return, at
about 3 pm, he tried to contact the accused on phone but his phone was
lying switched off and that again he made 3-4 attempts to contact him on
phone but his phone was lying switched off. He further deposed that at
about 8 pm, when he again made a call, the accused responded that he was
struck up in the Ram Lila crowd on the way and was reaching the guest
house with the identity proof of the lady.
94. PW2 then deposed that thereafter, he knocked on the door of
room no. 4 but no one responded and when he peeped through the
ventilator, which was above the door of the room, he did not notice any
activity inside the room. He then observed that a lady was sleeping inside
the room but she was bleeding of her mouth. He then removed the lock,
hanging in unlocked condition in the kunda of the door, and entered the
room and found that the lady was lying on the bed & bleeding from her
mouth. Immediately he came out of the room and informed the owner of
the Guest House and narrated to him about the incident. The Guest House
owner then called the police. During cross-examination in this regard,
nothing came out to discredit the testimony of PW2.
95. The Guest House Owner PW1 has also been examined by the
prosecution. He deposed that on being informed by Manager Aslam / PW2,
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he also went inside the room no.4 and found the lady dead and thereafter
he made a call at 100 number from the mobile of Manager (PW2), upon
which police arrived and after enquiries and taking photographs, the dead
body was sent to the hospital. In cross-examination, PW1 stated that the
room was opened by his Manager to check it before arrival of the police
and it was not opened in his presence.
96. Prosecution also examined few other witnesses in this regard.
PW9 HC Arun Kumar is the Mobile Crime Team photographer who
reached the spot and saw the lady dead in room no.4. He deposed that
blood was oozing from her nose & mouth and one pink color chunni was
found tied around her neck, the knot being at the back side. He clicked 18
photographs of the spot which are Ex. PW9/A1 to A18.
97. Similarly, the Crime Team Sub-Inspector, examined as PW11,
also deposed that he found the dead body of the female lying on the bed in
the room with blood oozing out of her mouth and nose and one chunni
found wrapped around her neck. He proved his report Ex. PW11/A.
98. PW14 Ct. Kamal is the police personnel who was
accompanying the IO and also saw the body. He took the body to the
mortuary.
99. PW13 Retd. SI Suresh Pal was the first to reach the Guest
House upon receiving information. The Manager Aslam / PW2 took him to
the room No.4 where he saw the dead body of the victim lady. Similarly,
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IO / PW20 also deposed that upon entering room no. 4 of the Guest House
he saw the lady lying dead over the bed with one chunni tied around her
neck having knot from back side of the neck.
100. Thus, what comes out from the appreciation of above
testimonies is that as PW2 made several attempts to contact the accused
who did not return back to the Guest House, he knocked on the room but
receiving no response he entered the room and discovered the lady dead.
Police was then called, and the police personnels also found the lady dead
in that room. The testimony of the Manager PW2 appears to be very
natural. He has been consistent in his stand. Nothing came out in his cross-
examination which could discredit his testimony. The circumstance
therefore stands proved that the victim was found dead in room no. 4 of the
Guest House.
101. As regards cause of death, prosecution examined Dr. Mohit
Chauhan as PW3 to prove the post-mortem report no. 919/15 dated
19.10.2015 Ex. PW3/A of the deceased victim Smt. Kaushalya Devi. The
post-mortem report was conducted by Dr. Ashish Bhute and the PM report
Ex. PW3/A bears his signatures. PW3 deposed that Dr. Ashish Bhute, the
then Sr. Resident, has left the services of the hospital and his present
whereabouts are not known, however he has worked with Dr. Ashish Bhute
and seen him signing and writing in the normal course of official duties
and he has been deputed through proper channel to prove the PM report.
PW3 identified the signatures of Dr. Ashish Bhute on the said PM report
Ex. PW3/A. He further deposed that as per the postmortem examination
report, according to brief history, the deceased was found dead in room no.
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4 of Hotel Amrina Guest House in the area of Jama Masjid and a chunni
was found tied around her neck and knot of the chunni was present on the
back of the neck. He further deposed that as per PM Report, one injury i.e.
ligature mark was observed on the neck of the deceased. He further
deposed that two contusions of reddish blue colour were also observed by
the doctor on the dead body.
102. PW3 further deposed that as per the report, the opinion of the
cause of death was asphyxia consequent upon antemortem ligature
strangulation via injury no.1 (pertaining to ligature mark) and that all the
injuries were antemortem in nature, fresh in duration prior to death and
were caused by blunt force trauma. He further deposed that ligature mark
mentioned in injury no. 1 was caused by ligature material and was possible
by the chunni present in situ around the neck, as per PM report. He further
deposed that as per report, the viscera was preserved, to rule out any
concomitant poisoning. He further deposed that after the postmortem, the
dead body was handed over to IO alongwith the exhibits mentioned in the
last page of PM report.
103. A question was put to the doctor/ PW3 touching directly on
the aspect of death being homicidal or suicidal. The relevant testimony
reads as follows:
“Q. In view of the PM Report Ex PW3/A, whether injury no. 1 was possible
in suicidal manner by the deceased herself ?
1. An attempt of suicidal strangulation is not possible in the present case as
while strangulating oneself, one looses consciousness due to constriction
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of cerebral blood vessels thereby loosening the hand grip. Thus, making
suicidal strangulation attempt is impossible.”
104. Nothing material has been asked further to this witness PW3
in cross-examination except his date of joining the hospital and about his
working with Dr. Ashish Bhute to which he replied that he joined the
hospital on 02.05.2011 and worked with Dr. Ashish Bhute in the
Department of Forensic Medicine for about 5 years. The post-mortem was
conducted by Dr. Ashish Bhute on 19.10.2015 and PW3 Dr. Mohit
Chauhan had joined the hospital much before that, therefore there can be
no doubt upon his testimony and a bald suggestion to PW3 in cross-
examination that he was not acquainted with signatures of Dr. Ashish
Bhute is inconsequential.
105. As per PM report, viscera was preserved to rule out any
concomitant poisoning. The viscera was sent for chemical examination to
FSL Rohini, Delhi. As per FSL report Ex. PW 20/J no poisoning was
detected in the exhibits.
106. As further revealed from the PM report, apart from viscera,
other materials viz. vaginal & anal swabs, blood sample, nail clippings and
clothes & ligature (chunni) obtained from the body of the deceased were
sealed & handed over to IO. These were sent to FSL Rohini, Delhi for their
Biological and DNA profiling. The FSL report dated 27.02.2018 in this
regard is Ex. PW21/A. Dr. Anita Chhari, the author of this report, was
examined as PW21. She identified her report and her signatures on it. As
regards DNA profiling, PW21 testified that the analysis performed is
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sufficient to conclude that the blood stains on the chunni, deceased’s shirt
and bedsheets are similar with the source i.e. blood gauze of deceased. As
regards Biological examination, the FSL report states that blood was
detected on chunni, blood gauze of the deceased, lady’s shirt, 2 bedsheets
and dark brown foul smelling liquid (kept in an injection vial), while blood
was not detected on nail clippings of deceased, vaginal & anal swabs of
deceased, pyjami and inner wear of the deceased. This report further states
that seminal stains could not be detected on vaginal & anal swabs of
deceased, pyjami and inner wear of the deceased and the 2 bedsheets.
107. Thus, the above discussed post-mortem report Ex. PW3/A
clearly proves that the death of the victim lady was homicidal in nature.
108. Ld. defence counsel from legal aid argued that the accused
had put a lock from outside and ensured that its locked and therefore
someone else might have opened the lock and could have access to the
room. In this regard, its is noted from the CCTV footage in file bearing
No. 2140342 MP4, time 2:00 pm (Channel No.2) Ex-PW13/A3 that the
accused is coming out of the room and then turning towards the door for
bolting / locking it. The portion of the door where the latch is situated is
dark & not clearly visible in the footage, however the accused is seen
bolting the door, but it cannot be said with any certainty the room was
locked with a lock. Sometimes a lock may not be locked due to its
shackle/shank i.e. the upper rounded metal not getting properly inserted in
the locking bar, resultantly the user thinks that it is locked however in
reality it is not. It is here noted that the Manager PW2 remained consistent
in his stand that the lock was found in unlocked condition hanging on the
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kunda of the door. Even otherwise, the conduct of the accused is noted
whereby at least he is bolting a room from outside with a lady confined in
it with whom he had come a few hours ago. Thus, the contention of the Ld.
defence counsel is of no help to the accused.
109. It would be pertinent to note here that as per the post-mortem
report the time of death is within 24-36 hrs prior to the post-mortem. The
post-mortem began at 3:30 pm on 19.10.2015 i.e. next day of the murder.
Thus, the death of the victim occurred between 3:30 am and 3:30 pm of
18.10.2015. Evidently, the victim was alive till 10 am of the fateful day i.e.
18.10.2015 when she checked-in at the Guest House room with the
accused. Thereafter, the accused left the Guest House at about 2 – 2:15 pm.
As noted from the PM report, the death might have occured till 3:30 pm.
The time duration during which the victim remained with the accused
inside the room i.e. about 10 am to 2:15 pm matches and fits within the
time duration of death of the victim as opined in the post-mortem report.
At the most there is a gap of about 1 – 1.5 hours after the accused left. The
said gap is so small that the possibility of a third person being the offender
is reasonably ruled out. There is very close proximity of time between the
victim being last seen in the company of the accused and the death of the
victim. As already noted from the testimony of PW2, he was regularly
trying to contact the accused telephonically since 3 pm as the accused did
not return back and finally at about 8 pm he found the victim dead inside
the room.
110. Thus, from the above discussion and appreciation of evidence,
the circumstance that the victim was found dead in the room soon
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thereafter i.e. after the accused had exited the room stands proved. The
death being homicidal in nature is also proved.
Circumstance no. 4:
The accused fled away from the Guest House and never returned.
111. It has already been observed in the above noted circumstances
no.1 to 3 that the accused and the victim (deceased) checked-in at room
no.4 of the guest house in the morning of 18.10.2015 at about 10 am and
the accused was seen exiting the room alone in the afternoon at about 2 –
2:15 pm. Soon thereafter, the victim was found dead in that room and
cause of death has been found to be homicidal in nature. It has to be now
seen whether the accused ever returned back to the Guest House.
112. It has come in the testimony of the Manager PW2 that when
the accused was exiting alone from the room at about 2 – 2:15 pm, he
asked the accused to furnish the ID proof of the lady to which the accused
had assured him to return with ID proof of the lady after having meals
from outside. PW2 waited for some time and since the accused did not
return, at about 3 pm, he tried to contact the accused on phone but his
phone was lying switched off. He further deposed that again he made 3-4
attempts to contact him on phone but his phone was lying switched off and
finally, at about 8 pm, he again made a call at the mobile phone of accused,
who responded that he was struck up in the Ram Lila crowd on the way
and reaching the guest house with the identity proof of the lady.
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113. Thereafter, PW2 found the dead body of the lady inside the
room. To prove the mobile number of the accused, prosecution examined a
witness namely Mahender Kumar as PW7 who deposed that he runs a
kirana shop in Gali Guliyan, Dariba Kalan, Delhi and knows the accused
Maqbool being a labourer near his shop. PW7 further deposed that he used
to call Maqbool whenever he required person for labour work and around 7
years ago, he got provided one mobile SIM to said Maqbool on his
address. PW7 correctly identified the accused Maqbool in the Court. He
further deposed that on 20.10.2015, police came to his house and inquired
about the user of the SIM which was in his name upon which he told
police that the said SIM was being used by Maqbool. During testimony
PW7 did not remember the SIM mobile number, however upon referring to
his mobile phone book he told the number as 9818096206. In cross-
examination PW7 stated that he did not tell the contact number of the SIM
to the police and that the police told him the above number and then asked
about its user. He also deposed that he does not remember the date, month
& year when he got provided the SIM to the accused, however it was
provided on the basis of his address proof. He denied the suggestion that
he saved the said number in his mobile at the instance of police. He also
denied the suggestion that the accused never used the said mobile SIM
number and that he used that SIM. He further deposed that he does not
remember the contact number of the said sim.
114. With regard to the said mobile number, prosecution examined
the nodal officer from Bharti Airtel Ltd. as PW4 who brought the original
customer application form (CAF) (Ex. PW4/A) of aforesaid mobile phone
no. 9818096206 and deposed that as per their records, said mobile phone
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number was registered in the name of Mahinder Kumar S/o Kirori Lal i.e.
PW7. Alongwith CAF one copy of Driving license of said Mahinder
Kumar was also annexed. Copy of Driving license was marked as Mark A.
Computer generated certified copy of CDR of mobile no. 9818096206
from 01.10.2015 to 20.10.2015 was exhibited as Ex. PW4/B (colly).
Certificate U/s 65B of Evidence Act qua aforesaid electronic evidence was
exhibited as Ex. PW4/C. PW4 also brought location chart, which was
exhibited as Ex PW4/D. PW4 was not cross-examined on behalf of the
accused despite opportunity granted.
115. Thus, despite being contacted on phone, the accused did not
return to the Guest House. Thereafter, upon the discovery of the dead body
of the lady victim inside the room and its information to police,
investigation began resulting in the arrest of accused from his village
house in Uttar Pradesh on 20.10.2015 and he was then brought to Delhi on
21.10.2015. PW17 SI Sushil Kumar was examined by the prosecution in
this regard who testified that he alongwith Ct. Mustak and Ct. Raisuddin
went in search of accused and arrested him from his village. PW17 proved
the arrest memo Ex. PW 15/A and personal search memo Ex. PW15/B of
the accused. Prosecution also examined said Ct. Mustaq Khan as PW 15
who also deposed on similar lines. Testimonies of both witnesses remained
intact during their cross-examinations.
116. There is also CCTV footage bearing file No. 2140342 MP4,
time 2:00 pm (Channel No.2) in which the accused wearing white colour
pant and shirt and gamcha on his shoulder is seen bolting the door of a
room from outside and going out from the guest house. PW13 testified
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with regard to the DVR & its CCTV footage. In cross-examination, PW13
was simply asked about when did he first see the CCTV footage to which
he replied that he saw the same in the Guest House on 19.10.2015
alongwith the Guest House owner Mohd. Tariq (PW1) and CCTV camera
technician. Nothing further was put to this witness PW13 in cross-
examination except for a bald suggestion that the footages are tampered
and that PW13 did not see any such footage in the Guest House.
Prosecution examined the expert witness PW 22 from FSL Rohini who
deposed that there is no alteration in the CCTV footage. The accused was
later arrested from his village house in Uttar Pradesh on 20.15.2015.
117. It is thus clear from the above evidence that accused after
having left the Guest House alone at about 2 – 2:15 pm, never returned
back. It has rather never been the case or even defence of the accused that
he had returned back since there is no suggestion to this effect ever put to
any prosecution witness. Therefore, prosecution has been able to establish
the circumstance that the accused fled away from the Guest House on
18.10.2015 at about 2- 2:15 pm and never returned back.
Circumstance no. 5:
The accused and the deceased were last seen together in the guest house.
118. Before discussing this circumstance, it would be apt to visit
the legal position with respect to the last seen theory summarized by the
Hon’ble High Court of Delhi in Arvind @ Chotu v. State, 2009:DHC:3152-
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DB [Crl. A.362/01, decided on 10.08.2009], the relevant excerpt of which
is reproduced hereunder:
“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 seen in the company
of the accused and the death of the deceased is important and if the time gap
is so small that the possibility of a third person being the offender is
reasonably ruled out, on the solitary 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 seenSC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 61 of 89
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.”
119. The Hon’ble Apex Court in Nizam & Anr. vs. State of
Rajasthan, AIR 2015 SC 3430, discussed the law regarding last seen
theory. It was observed: –
“Elaborating the principle of “last seen alive” in State of
Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court
held as under:- “23. It is not necessary to multiply with
authorities. The principle is well settled. The provisions of
Section 106 of the Evidence Act itself are unambiguous and
categoric in laying down that when any fact is especially
within the knowledge of a person, the burden of proving that
fact is upon him. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when
he parted company. He must furnish an explanation which
appears to the court to be probable and satisfactory. If he does
so he must be held to have discharged his burden. If he fails
to offer an explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast upon him by
Section 106 of the Evidence Act. In a case resting on
circumstantial evidence if the accused fails to offer a
reasonable explanation in discharge of the burden placed on
him, that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does not shift
the burden of proof in a criminal trial, which is always upon
the prosecution. It lays down the rule that when the accused
does not throw any light upon facts which are specially
within his knowledge and which could not support any theory
or hypothesis compatible with his innocence, the court can
consider his failure to adduce any explanation, as anSC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 62 of 89
additional link which completes the chain. The principle has
been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad
218)” The above judgment was relied upon and reiterated in
Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319.”
120. Further, in Ramreddy Rajeshkhanna Reddy & Anr. vs. State
Of Andhra Pradesh, AIR 2006 SC 1656, Apex Court held as follows:
“It is now well-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 cannot be on any other hypothesis. It is also
well-settled that suspicion, however, grave may be, cannot
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. [See Anil Kumar Singh v. State
of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v.
State of A.P. (2005) 7 SCC 603].
The last-seen theory, furthermore, comes into play where
the time gap between the point of time when the accused
and the deceased were last seen alive and the deceased is
found dead is so small that possibility of any person other
than the accused being the author of the crime becomes
impossible. Even in such a case courts should look for some
corroboration.”
121. In case of State of U.P. v. Satish, AIR 2005 SC 1000, with
regard to last-seen theory following was held:
“The last seen theory comes into play where the time-gap
between the point of time when the accused and the
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 the crime becomes
impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous toSC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 63 of 89
come to a conclusion of guilt in those cases. In this case
there is positive evidence that the deceased and the accused
were seen together by witnesses.”
122. Now, coming to the case in hand. As discussed under the
circumstance no. 1 to 4, it has already been proved that the accused and the
victim (deceased) checked-in at room no.4 of the guest house in the
morning of 18.10.2015 and the accused was seen exiting the room in the
afternoon at about 2 – 2:15 pm. Later, the victim was found dead in the
room and cause of death has been found to be homicidal in nature. It has
also been proved that the accused fled away from the Guest House and
never returned back and was later arrested from his village house in Uttar
Pradesh. Consequently, it is clear that the accused and the deceased were
together in the Guest House room on 18.10.2015 when accused left the
Guest House alone leaving behind the victim lady in the room who was
later found dead the same evening. PW2 has already testified that he was
present at the reception of Amrina Guest House and attended the accused
and the victim lady at about 10 am when they came for a room. He then
allotted room no.4 to them. At that time only accused gave his Aadhaar
card as ID proof and as regards the ID proof of the lady, the accused told
him that at that time he was not having her ID proof and that he would
submit the same when he goes for taking meals.
123. PW2 then testified that at about 2 / 2:15 pm, he saw the
accused coming out of room no. 4 and upon being asked to furnish ID
proof of the lady, the accused told that he was leaving for meals and would
bring ID proof of the lady and would submit the same. He further deposed
that since the accused did not return, he made several phone call attempts,
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but the accused never returned back.
124. As already discussed above, there is evidence proved in the
form of CCTV footage bearing file No. 2094342-MP4 time: 9:50 am
(Channel No. 2) and file No. 1094342-MP4, time 9:50 am, (Channel No.
l), wherein the accused alongwith the deceased are seen entering in the
room and footage bearing file No. 2140342 MP4, time 2:00 pm (Channel
No.2) the accused alone exiting the room bolting the door from outside and
going out from the guest house. Prosecution examined the expert witness
PW 22 from FSL Rohini who proved that there is no alteration in the
CCTV footage.
125. The fact / circumstance that the accused and the deceased
were last seen together in the Guest House thus stands duly proved. This
assumes much importance since this case is based upon circumstantial
evidence involving the last seen theory. The effect of this circumstance
shall be discussed later.
Circumstance no. 6:
Identification of accused and deceased .
126. In any criminal case, the identification of the accused and
victim are of utmost importance. In the present case, during his testimony
PW2 correctly identified the accused present in the Court to be the person
who came to the Guest House alongwith the victim lady for a room and
they were allotted room no. 4. PW2 had taken the original Aadhar Card Ex.
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P1 from the accused on the basis of which he was arrested. During his
testimony, PW2 also correctly identified the Aadhar card Ex. P1 of the
accused which was taken by him when the accused had checked-in and
said Aadhar card was then seized by police.
127. On the basis of this Aadhar card, the search for the accused
was initiated. The accused was later arrested by PW17 SI Sushil Kumar
who also prepared the arrest memo Ex. PW15/A and personal search
memo Ex. PW15/B. PW15 HC Mustaq Khan assisted the IO in the
apprehension and arrest of the accused. During their testimonies, both
these witnesses, PW15 & PW17, duly identified the accused in the Court.
128. The accused was also identified in the Court in the testimony
by witness PW6 namely Suresh Rajvanshi, husband of the deceased lady.
PW6 testified that the police showed him one Aadhar Card of Maqbool i.e.
accused and he identified him as he used to go in the area of Vakilpura
during his working hours for taking tea and there accused used to meet
him. PW6 also identified the Aadhar Card of the accused when shown to
him during his testimony.
129. Thus, from the above appreciation of evidence, the identity of
accused stands proved. It can be therefore safely concluded that the
accused is the person who checked-in at room no. 4 of the Guest House
alongwith the victim.
130. As regards the identity of the deceased, she was identified by
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her husband Suresh Rajvanshi, examined as PW6, in the mortuary when
police took him there. The husband also identified his deceased wife from
photograph Ex. PW2/C shown to him during his testimony. He had also
given a statement regarding body identification which he duly identified as
Ex. PW6/A during his testimony. Similarly, the dead body of the deceased
was also identified in the mortuary by her son Dharmender Kumar,
examined as PW8. He also identified his deceased mother from
photograph Ex. PW8/A shown to him during his testimony. Both witnesses
deposed that they received the dead body vide receipt Ex. PW6/B bearing
their signatures.
131. The Manager PW2 also identified the deceased from her face
depicted in the photograph Ex. PW2/C to be the lady who came alongwith
the accused on 18.10.2015 in the Guest House and had gone inside the
room no. 4 allotted to them and that she was later found dead inside that
room. IO (Retd.) Insp. Dhan Singh / PW 20 also identified the deceased
lady alongwith her articles seized such as ladies bag, slippers, chunni
which was tied around her neck, her clothes etc. Thus, there is no iota of
doubt as regards the identification of the deceased as well.
132. Resultantly, the identification of the accused and deceased
also stands proved.
Further Analysis & Findings:
133. Having discussed the above mentioned circumstances being
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proved on record, it becomes imperative to now discuss their resultant
effect in view of the law as applicable.
134. In heinous crimes like murder, it becomes difficult to have an
eye-witness. Under criminal law, the deposition or the oral testimony of an
eye-witness is called direct evidence. But where the witness has not
directly seen the commission of the offence, the case becomes that of a
circumstantial evidence also known as indirect evidence, deducted from
the existing facts and is an inference drawn from proved facts. This kind of
evidence though an admissible evidence in a criminal trial, it has to be
treated with a lot of caution and circumspection by the Criminal Court
because of the inherent subjectivity in drawing the conclusions by the
Court concerned. The law regarding the nature and character of proof of
circumstantial evidence has been settled by several authorities of Hon’ble
Supreme Court and the Hon’ble High Courts in India. The locus classicus
of the decision was rendered by Hon’ble Mr. Justice Mahajan of the
Hon’ble Apex Court in Hanumant V. State of Madhya Pradesh, 1953
Crl.L.J 129, who expounded the concomitants of the proof of a case based
on circumstantial evidence by holding:
“The circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one proposed
to be proved. It must be such as to show that within all human
probability the act must have been done by the accused.”
135. In the celebrated judgment of Sharad Birdhi Chand Sarda V.
State of Maharashtra, AIR 1984 SC 1622, the Hon’ble Supreme Court,
while examining the nature and character of proof of circumstantial
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evidence, reiterated its decision rendered in the aforesaid case of
Hanumant (supra) wherein the Hon’ble Court had propounded five golden
principles regarding circumstantial evidence. The said golden principles of
Sharad Birdhichand (supra) have been recently reiterated in an Apex Court
judgment in Nusrat Parween Vs. State of Jharkhand, 2024 INSC 955
[Criminal Appeal No. 458 of 2012] under para 7 as follows:
“7. It is a well-established principle of criminal jurisprudence that
conviction on a charge of murder may be based purely on circumstantial
evidence, provided that such evidence is deemed credible and trustworthy.
In cases involving circumstantial evidence, it is crucial to ensure that the
facts leading to the conclusion of guilt are fully established and that all the
established facts point irrefutably to the accused person’s guilt. The chain of
incriminating circumstances must be conclusive and should exclude any
hypothesis other than the guilt of the accused. In other words, from the
chain of incriminating circumstances, no reasonable doubt can be
entertained about the accused person’s innocence, demonstrating that it was
the accused and none other who committed the offence. The law with regard
to conviction based on circumstantial evidence has been crystalised by this
Court in the case of Sharad Birdhichand Sharda Vs. State of Maharashtra,
wherein it was held:
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should be
proved” as was held by this Court in Shivaji Sahabrao Bobade
V. State of Maharashtra [(1973) 2 SCC 793] where the
observations were made: [SCC para 19, p. 807]SC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 69 of 89
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.”
(emphasis supplied)
136. The aforesaid five cardinal principles have been reiterated by
the Hon’ble Supreme Court of India in numerous judgments. The principle,
as laid down in aforesaid judicial dicta, is that in cases based on
circumstantial evidence, circumstances from which the conclusion of guilt
is drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be complete,
forming a chain and there should be no gap left in the chain of evidence.
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The various circumstances in the chain of events must be such so as to rule
out the reasonable likelihood of innocence of accused. The missing of
important link snaps the chain of circumstances and the other
circumstances cannot in any manner establish guilt of accused beyond all
reasonable doubts.
137. The principle of circumstantial evidence has been reiterated
by the Apex Court in a plethora of cases. In Bodhraj @ Bodha And Ors.
Vs. State of Jammu & Kahsmir, (2002) 8 SCC 45, the Hon’ble Supreme
Court held as under:-
“10. It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh V. State of Rajasthan (1977) 2 SCC 99, Eradu V.
State of Hydrabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka
(1983) 2 SCC 330, State of U.P. Vs. Sukhbasi (1985) Suppl. SCC 79,
Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar
Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances
from which an inference as to the guilt of the accused 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 Bhagat Ram Vs. State of Punjab, AIR 1954 SC 621 it was
laid down that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring home the offences beyond
any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga
Reddy V. State of A.P. (1996) 10 SCC 193, wherein it has been observed
thus: (SCC pp. 206-07, para 21) “21. In a case based on circumstantial
evidence, the settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and such circumstances
must be conclusive in nature. Moreover, all the circumstances should beSC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 71 of 89
complete and there should be no gap left in the chain of evidence. Further,
the proved circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence.”
138. In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006)
10 SCC 681, the Hon’ble Supreme Court held as under:
“10. In the case in hand there is no eyewitness of the occurrence and the case
of the prosecution rests on circumstantial evidence. The normal principle in a
case based on circumstantial evidence is that the circumstances from which
an inference of guilt is sought to be drawn must be cogently and firmly
established; that those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on
any hypothesis other than that of the guilt of the accused and inconsistent
with their innocence.”
139. In light of the aforesaid guiding principles of law, turning to
the case in hand it is observed that the 6 circumstances discussed above
have been duly proved and established by the prosecution viz. the accused
and the victim checked-in at room no.4 of the Guest House in the morning;
the accused was seen exiting alone from the room of the Guest House
same day in the afternoon; the victim was found dead in the room soon
thereafter and cause of death being homicidal in nature; the accused fled
away from the guest house and never returned; the accused and the
deceased were last seen together in the guest house on 18.10.2015;
Identification of accused and deceased duly established.
140. Apart from the above proven circumstances, there are other
circumstances such as proximity of place i.e. the place where the deceased
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and the accused were last seen alive with the place where the dead body of
the deceased was found, which are also important circumstances. In this
case there is absolute proximity of the place where the deceased and the
accused were last seen alive with the place where the dead body of the
deceased was found. As already proved, it was room no.4 of the Guest
House where both of them were seen alive and the body of the deceased
has also been found from that room.
141. The conduct of the accused is also important and relevant
under the law of Evidence. It would be important to note the conduct of the
accused where he leaves the Guest House room with the victim lady inside
and bolts the same from outside. The contention of the Ld. defence
Counsel from legal aid regarding the accused putting lock on the door has
already been dealt under circumstance no.3 above. Even though not clearly
visible in the footage, assuming for a moment that he was putting a lock on
the bolt and had actually locked it successfully, this act in itself is
suggestive of his intention to hide what had happened inside the room. In
ordinary circumstances, no prudent person would, without any plausible
cause, lock the room of a hotel / guest house with an adult female inside
and to never return back. The act of doing so by the accused is a clear
pointer towards establishing his guilt. This conduct of accused is relevant
u/s 8 of the Indian Evidence Act, 1872 which reads as under:
“8. Motive, preparation and previous or subsequent conduct.
Any fact is relevant which shows or constitutes a motive or preparation for
any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or
SC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 73 of 89
proceeding, in reference to such suit or proceeding, or in reference to any
fact in issue or relevant thereto, and the conduct of any person an offence
against whom is the subject of any proceeding is relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact, and whether
it was previous or subsequent thereto.”
142. The subsequent conduct of the accused in not responding
to the mobile calls of the Manager /PW2 and of fleeing away from the
Guest House and not returning back are also facts relevant in the case
to which the accused owes the liability of a plausible explanation.
This subsequent conduct of the accused adds a link in the chain of
circumstances.
143. In the given factual matrix of the case and in light of the
aforesaid proven circumstantial evidence, a question as to the
relationship between the accused and the deceased arises which is also
an important circumstance to be kept in mind while applying the last
seen theory. Prosecution examined a witness namely Suresh Rajvanshi
as PW6 who is the husband of the deceased lady. PW6 testified that
the police showed him one Aadhar Card of Maqbool i.e. accused and
he identified him as he used to go in the area of Vakilpura during his
working hours for taking tea and there accused used to meet him.
PW6 also identified the Aadhar Card of the accused when shown to
him during his testimony. He also identified the dead body to be of his
wife when shown in the mortuary. In cross-examination of PW6, there
is no challenge as to the marriage between him and the deceased.
Thus, admittedly the victim lady was married to PW6. Therefore, the
accused taking a married lady i.e. the deceased to a Guest House room
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raises eyebrows and gives rise to an inference of an illicit relation
between the two, which in the given social milieu of our society is
somewhat unacceptable and demands an explanation. As already
observed in the foregoing paras, the accused alone fled from the Guest
House in the afternoon to never return back. The aforesaid conduct of
the accused reflects upon his relationship with the victim and a
reasonable explanation is expected from him, but none has been
offered and there is absolute silence over this aspect. This also adds to
the chain of circumstances. This situation reminds a famous quote by
Shakespeare who wrote in the play Hamlet, “Something is rotten in
the State of Denmark” !
144. The warps and wefts of the weave in the fabric of aforesaid
circumstantial evidence are so cogent and firm that they have left no gaps
in them. They cumulatively form a complete chain unerringly pointing
towards the guilt of the accused and there is no escape from the conclusion
that within all human probability the crime was committed by the accused.
The proven circumstances in this case are consistent only with the
hypothesis of guilt of the accused and totally inconsistent with his
innocence.
145. The stage is now set for invocation of Sec. 106 of Indian
Evidence Act, 1872.
Invocation of the Burden of Proof u/s 106 Indian Evidence Act, 1872:
146. Section 106 Indian Evidence Act, 1872 embodies the rule with
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respect to the burden of proving facts especially within the knowledge of
any person. The provision reads as under:
“106. Burden of proving fact especially within knowledge.– When any fact
is especially within the knowledge of any person, the burden of proving that
fact is upon him.
Illustration
(a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.”
147. The expression ‘Burden of Proof’ is used in two senses in the
Indian Evidence Act, firstly, as the burden of proving an issue, also termed
as ‘Legal Burden’ and secondly, the burden of adducing evidence, also
termed as ‘Evidential Burden’. The difference between the two is that
‘Legal Burden’ never shifts and ‘Evidentiary Burden’ keeps on shifting
during the trial. In criminal cases the ‘Legal Burden’ is on the prosecution.
It is trite law that prosecution has to stand on its own legs and burden of
proving the case lies upon it only, the same is inflexible. The elementary
rule of burden of proof is embodied in Sec. 101 Indian Evidence Act,
which reads as under:
“101. Whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove
that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the
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burden of proof lies on that person.
Illustrations
1. A desires a Court to give judgment that B shall be punished for a crime
which A says B has committed.
A must prove that B has committed the crime.
2. ….”
148. The ‘Evidential Burden’ remains shifting during the various
stages of trial. This rule is embodied in sec. 102 Indian Evidence Act,
which reads as under:
“102. The burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side.”
149. As per sec. 102, the initial onus is always on the prosecution
and if the initial onus is discharged and a case is made out entitling it for
relief, the onus shifts to the accused to prove those circumstances which
would disentitle the prosecution of the relief. Thus, the two terms ‘Burden’
and ‘Onus’ are distinguishable when we take a conjoint reading of sec. 101
& 102 Indian Evidence Act, 1872.
150. As a general rule, the burden of proving facts asserted by the
prosecution lies upon it only as per sec. 101 Indian Evidence Act.
However, sec. 106 is an exception to this general rule of legal burden.
Recently, in a 3 Judges Bench decision of Hon’ble Supreme Court in
Anees v. The State Govt. of NCT, 2024 INSC 368 it has been observed as
follows:
SC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 77 of 89
“36. Section 106 of the Evidence Act referred to above provides that
when any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. The word “especially” means
facts that are pre-eminently or exceptionally within the knowledge of the
accused. The ordinary rule that applies to the criminal trials that the onus
lies on the prosecution to prove the guilt of the accused is not in any way
modified by the rule of facts embodied in Section 106 of the Evidence
Act. Section 106 of the Evidence Act is an exception to Section 101 of
the Evidence Act. Section 101 with its illustration (a) lays down the
general rule that in a criminal case the burden of proof is on the
prosecution and Section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately difficult,
for the prosecution to establish the facts which are, “especially within
the knowledge of the accused and which he can prove without difficulty
or inconvenience”.
151. As regards the meaning and import of the word “especially”,
the Hon’ble Apex Court in Anees (supra) observed as follows:
“37. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404,
this Court while considering the word “especially” employed in Section
106 of the Evidence Act speaking through Vivian Bose, J., observed as
under: “11. … The word “especially” stresses that it means facts that are
pre-eminently or exceptionally within his knowledge. If the section were
to be interpreted otherwise, it would lead to the very startling conclusion
that in a murder case the burden lies on the accused to prove that he did
not commit the murder because who could know better than he whether
he did or did not. It is evident that that cannot be the intention & the
Privy Council has twice refused to construe this section, as reproduced
in certain other Acts outside India, to mean that the burden lies on an
accused person to show that he did not commit the crime for which he is
tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23)
(A) and Seneviratne v. R. 1936-3 All ER 36 AT P. 49 (B).
38. The aforesaid decision of Shambhu Nath (supra) has been referred to
and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725,
wherein this Court observed as under: “22. Thus, Section 106 of the
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Evidence Act will apply to those cases where the prosecution has
succeeded in establishing the facts from which a reasonable inference
can be drawn regarding the existence of certain other facts which are
within the special knowledge of the accused. When the accused fails to
offer proper explanation about the existence of said other facts, the court
can always draw an appropriate inference. 23. When a case is resting on
circumstantial evidence, if the accused fails to offer a reasonable
explanation in discharge of burden placed on him by virtue of Section
106 of the Evidence Act, such a failure may provide an additional link to
the chain of circumstances. In a case governed by circumstantial
evidence, if the chain of circumstances which is required to be
established by the prosecution is not established, the failure of the
accused to discharge the burden under Section 106 of the Evidence Act
is not relevant at all. When the chain is not complete, falsity of the
defence is no ground to convict the accused.” (Emphasis supplied)”
152. The Hon’ble Supreme Court then went ahead to observe that
until a prima facie case is established by evidence led by prosecution, the
onus does not shift to the accused. The relevant excerpt from Anees (supra)
is as follows:
“44. Section 106 of the Evidence Act cannot be invoked to make up the
inability of the prosecution to produce evidence of circumstances
pointing to the guilt of the accused. This section cannot be used to
support a conviction unless the prosecution has discharged the onus by
proving all the elements necessary to establish the offence. It does not
absolve the prosecution from the duty of proving that a crime was
committed even though it is a matter specifically within the knowledge
of the accused and it does not throw the burden on the accused to show
that no crime was committed. To infer the guilt of the accused from
absence of reasonable explanation in a case where the other
circumstances are not by themselves enough to call for his explanation is
to relieve the prosecution of its legitimate burden. So, until a prima facie
case is established by such evidence, the onus does not shift to the
accused.”
153. Further, the Hon’ble Court in Anees (supra) also explained the
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meaning of prima facie case or foundational facts as under :
“ii. What is “prima facie case” (foundational facts) in the context of
Section 106 of the Evidence Act?
49. The Latin expression prima facie means “at first sight”, “at first
view”, or “based on first impression”.
….
…
50. Section 106 of the Evidence Act would apply to cases where the
prosecution could be said to have succeeded in proving facts from which
a reasonable inference can be drawn regarding guilt of the accused.
51. 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.
52. To explain what constitutes a prima facie case to make Section 106
of the Evidence Act applicable, we should refer to the decision of this
Court in Mir Mohammad (supra), wherein this Court has observed in
paras 36 and 37 respectively as under: “36. In this context we may
profitably utilize the legal principle embodied in Section 106 of the
Evidence Act which reads as follows: “When any fact is especially
within the knowledge of any person, the burden of proving that fact is
upon him.” 37. The section is not intended to relieve the prosecution of
its burden to prove the guilt of the accused beyond reasonable doubt.
But the section would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable inference can be
drawn regarding the existence of certain other facts, unless the accused
by virtue of his special knowledge regarding such facts, failed to offer
any explanation which might drive the court to draw a different
inference.”
154. It would be worthwhile to also mention the observation of
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Hon’ble Supreme Court further in this case of Anees (supra), as follows:
“55. If an offence takes place inside the four walls of a house and in
such circumstances where the accused has all the opportunity to plan
and commit the offence at a time and in the circumstances of his choice,
it will be extremely difficult for the prosecution to lead direct evidence
to establish the guilt of the accused. It is to resolve such a situation that
Section 106 of the Evidence Act exists in the statute book. In the case of
Trimukh Maroti Kirkan (supra), this Court observed that a Judge does
not preside over a criminal trial merely to see that no innocent man is
punished. The Court proceeded to observe that a Judge also presides to
see that a guilty man does not escape. Both are public duties. The law
does not enjoin a duty on the prosecution to lead evidence of such
character, which is almost impossible to be led, or at any rate, extremely
difficult to be led. The duty on the prosecution is to lead such evidence,
which it is capable of leading, having regard to the facts and
circumstances of the case.”
155. Thus, the Hon’ble Supreme Court in Anees (supra) has held
that section 106 would apply to cases where the prosecution has succeeded
in bringing out a prima facie case i.e. proving facts from which a
reasonable inference can be drawn regarding the existence of certain other
facts, unless the accused by virtue of his special knowledge regarding such
facts, failed to offer any explanation which might drive the court to draw a
different inference. The Hon’ble Court observed that once the foundational
facts are duly proved, the Courts are justified in invoking the principles
enshrined under Section 106 of the Evidence Act.
156. Applying to the case in hand the aforesaid principles of law as
laid down by the Hon’ble Apex Court, it follows that the circumstances or
the foundational facts have duly proved by the prosecution. The last seen
theory is also proved in this case. The situation is apt to invoke sec. 106
Indian Evidence Act. As already observed, the accused alone left the Guest
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House on 18.10.2015 at about 2 – 2:15 pm leaving behind the victim in the
room closed from outside. Despite being contacted several times on
mobile, he never returned. The victim was found dead in that room soon
after. It was therefore for the accused to reasonably explain or present a
cogent reason for his fleeing away from the Guest House and never
returning back. He was ultimately arrested from his village in Uttar
Pradesh on 20.10.2015.
157. The accused was examined u/s 313 Cr.P.C. in which all
incriminating evidence was put to him. In such examination, the testimony
of PW2 / Manager Aslam was also put to the accused as regards him
leaving the Guest House on the pretext of bringing the ID proof of the
lady, responding to the mobile phone call of PW2 by stating that he would
return back in sometime as he was struck in a jam, switching off the
mobile and the lady being found dead in that room later. To all these
questions / incriminating evidences, the accused simply replied by stating
them to be ‘false’ and ‘incorrect’. As regards his entering & checking-in at
the Guest House room with the victim lady also, the accused simply
replied in the words ‘It is incorrect’. Surprisingly, when the evidence of
PW13 as to crucial piece of evidence i.e. CCTV footage, containing the
entry of accused along with victim lady in the Guest House, was put he
again replied in a similar manner by stating that it is incorrect and he might
have been taken by the police officials. What follows here is that the
accused is shying away to admit his presence at the Guest House and thus
tries to deny his presence and takes a lame stand by insensibly stating that
he might have been taken by the police officials, which makes no sense to
the context.
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158. There are, in as much as, 69 questions put to the accused in
his examination u/s 313 Cr.P.C. encompassing all evidence on record, but
the accused has answered almost all of them simply in words such as “It is
incorrect”, “It is false”, “I do not know”, “I cannot say”. Lastly, in general
questions as to why PWs have deposed against him and does he want to
say anything else, he replied that PWs had deposed falsely against him and
they falsely implicated him as they wanted to be in good books of their
senior officers and for their vested interest and that he is innocent and has
been falsely implicated in the present case by the police. Accused denied to
lead defence evidence.
159. In Munish Mubar v. State of Haryana, AIR 2013 SC 912, the
Hon’ble Court held that it is obligatory on the part of the accused while
being examined under section 313, Cr.P.C. to furnish some explanation
with respect to the incriminating circumstances associated with him and
the court must take note of such explanation even in a case of
circumstantial evidence so as to decide whether or not the chain of
circumstances is complete. The same view was taken in the case of Mushir
Khan v. State of M.P., AIR 2010 SC 762. In Munish Mubar case (supra),
the Hon’ble Supreme Court observed that “circumstantial evidence is a
close companion of actual matrix, creating a fine network through which
can be no escape for the accused, primarily, because such facts when taken
as a whole, do not permit us to arrive any other inference but one,
indicating the guilt of accused.”. In this case of Munish Mubar (supra), the
accused/appellant and deceased both were having illicit relation with co-
accused lady, the car of accused/appellant was found parked at Airport
where the deceased was to arrive and the car was moved out of parking
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area after arrival of the flight, presence of the appellant at the place of
occurrence was proved by his telephonic records. Articles recovered on
disclosure made by the appellant were found to contain human blood, the
appellant gave no explanation as to the parking of his car at the Airport or
about the recoveries made at his instance. Circumstance clearly connected
the appellant with crime. And merely making the bald statement under
section 313 by the accused that he was innocent and recoveries had been
planted and the call records were false and fabricated documents, was
found not enough as none of the said allegations made by the appellant
could be established. The Hon’ble Supreme Court held that the
accused/appellant was expected to explain the reason for which he had
gone to Airport and why the car had remained parked there for several
hours.
160. In the case of Phula Singh v. State of Himachal Pradesh, AIR
2014 SC 1256, the Hon’ble Supreme Court held that an accused has the
right to maintain silence during examination or even remain in complete
denial when his statement under section 313, Cr.P.C. is being recorded. But
in such an event adverse inference could be drawn against him.
161. In Sanatan Naskar & Another v. State of West Bengal, AIR
2010 SC 3507, the Hon’ble Supreme Court observed that the option lies
with the accused to maintain silence coupled with simplicitor denial or, in
the alternative, to explain his version and reasons, for his alleged
involvement in the commission of crime. Further held that this is the
statement which the accused makes without fear or right of the other party
to cross-examine him, however, if the statements made are false, the Court
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is entitled to draw adverse inferences and pass consequential orders, as
may be called for, in accordance with law.
162. In the present case, thus, analysis of the statement of accused
recorded u/s 313 Cr.P.C. yields nothing in favour of the accused which
could help him discharge the burden casted upon him by virtue of sec. 106
Indian Evidence Act, as discussed above. He has miserably failed to even
utter any explanation or plausible reason for his not returning back to the
Guest House. He rather kept saying simply “It is incorrect” and “It is
false”. Adverse inference is therefore drawn against the accused in view of
the dictum in Phula Singh (supra). This is a case of absolute absence of
explanation which would itself be an additional link that completes the
chain. Also, nothing material could be elicited out during cross-
examinations of PWs which could establish any reasonable defence of the
accused or could discharge his burden of sec. 106 of Indian Evidence Act.
163. On the aspect of absence of explanation or false explanation
itself becoming an additional link completing the chain, the Hon’ble Apex
Court in Deonandan Mishra vs The State of Bihar, 1955 AIR 801 observed
as under:
“It is true that in a case of circumstantial evidence not only should the
various links in the chain of evidence be clearly established, but the
completed chain must be such as to rule out a reasonable likelihood of the
innocence of the accused. But in a case like this where the various links as
stated above have been satisfactorily made out and the circumstances
point to the appellant as the probable assailant, with reasonable
definiteness and in proximity to the deceased as regards time and
situation, and he offers no explanation, which if accepted, though not
proved, would afford a reasonable basis for a conclusion on the entire case
consistent with his innocence, such absence of explanation or falseSC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 85 of 89
explanation would itself be an additional link which completes the chain.
We are, therefore, of the opinion that this is a case which satisfies the
standards requisite for conviction on the basis of circumstantial evidence.”
164. In view of the above authority, there can be no doubt that
since the accused has failed to set up any good defence and has not offered
any reasonable explanation to discharge his burden of proof u/s 106 of
Indian Evidence Act, it becomes an additional link completing the chain of
already proved circumstances.
165. The Hon’ble High Court of Delhi in Arvind @ Chhotu (supra)
has observed as under:
“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 defence. It is also
not a number game where the number of circumstances would determine
the guilt 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 anSC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 86 of 89
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.”
166. The Ld. defence counsel (LAC) argued that the testimonies of
owner/PW1 and Manager / PW2 are are contradictory to each other on the
point of recording of statement by the police. Further, he also submitted
that in the cross-examination of PW2, it has come that the phone call to the
police was made from his mobile by the guest house owner at about 9 PM,
while in the cross-examination of PW1, he stated that he made PCR call at
about 11 PM from the mobile phone of Manager/ PW2 and therefore, there
is discrepancy in the testimonies of PW1 and PW2 as regards the time of
making call to the police regarding the incident. In this regard it is
observed that these two witnesses have by & large not deviated from their
testimonies and the difference of time in their testimonies as regards
calling the police does not in any manner discredit their testimonies. Even
otherwise, the difference not much so as to create any doubt over the
incident. The fact remains that a murder occured and police was called. It
cannot be expected from the public witnesses to state in exactitude the
timings of the various circumstances of any case. In Narayan Chetanram
Chaudhary Vs. State of Maharashtra, (2000) 8 SCC 457 , it was observed
as under:-
SC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 87 of 89
“42. …
Minor contradictions are bound to appear in the statements of truthful
witnesses as memory sometimes plays false and the sense of observation
differ from person to person.”
167. In Allauddin Khan V. State of West Bengal, 2015 SCC OnLine
Cal 3033, it was held as under:
“15. It is the settled proposition of law that there (sic, is) bound to be some
discrepancies between the depositions of different witnesses when they
speak on details, and unless the contradictions are of a material dimension,
the same should not be used to jettison the evidence in its entirety.”
168. Thus, the above arguments raised on behalf of accused do not
help him. The reliance placed by Ld. LAC in Annabelle Analista (supra)
is also misplaced as the said case pertains to NDPS and is distinguished
with the present case.
169. In Rama Nand Vs. State of Himachal Pradesh, 1981 AIR 738,
the Hon’ble Supreme Court while enunciating the law relating to
circumstantial evidence through Hon’ble Mr. Justice Sarkaria famously
remarked that :
“Perfect proof is seldom to be had in this imperfect world, and absolute
certainty is a myth. That is why under Section 3, Evidence Act, a fact is said
to be “proved”, if the Court, considering the matters before it, considers its
existence so probable that a prudent man ought, under the circumstances of
the particular case to act upon the supposition that it exists. The corpus
delicti or the fact of homicidal death, therefore, can be proved by telling and
inculpating circumstances which definitely lead to the conclusion that
within all human probability, the victim has been murdered by the accused
concerned.”
SC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 88 of 89
Conclusion :
170. To sum up, the circumstances establishing guilt of the accused
have been fully established. The facts established on record are consistent
only with the hypothesis of guilt of accused Maqbool. The circumstances
are not explainable on any other hypothesis except his guilt. All the
circumstances, as proved by prosecution, are conclusive in nature. The
circumstances proved on record exclude every possible hypothesis except
the guilt of accused Maqbool. The chain of evidence in the present case is
so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused. The circumstances proved on
record in this case show that in all human probability it was the accused
Maqbool who had committed the murder of the deceased Kaushalya Devi.
In my considered view, the aforesaid circumstances are sufficient to form a
complete chain which unerringly points towards the guilt of accused
Maqbool.
171. Accordingly, accused Maqbool stands convicted for the
offence punishable under Section 302 of Indian Penal Code, 1860.
172. Be heard on the point of sentence separately.
Digitally signed by PRANJAL PRANJAL ANEJA ANEJA Date: 2025.05.03 17:06:51 +0530 Announced in the open (PRANJAL ANEJA) Court on 03rd May, 2025 Spl. Judge, NDPS-02, Central, Tis Hazari Courts, Delhi SC No. 28672/16 FIR No. 195/15 U/s 302 IPC PS Jama Masjid State Vs. Maqbool Pages No. 89 of 89
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