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Neeraj Safi vs State on 4 October, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A.694 of 2017

Reserved on: 29th August 2018
Decided on: 4th October 2018

NEERAJ SAFI …..Appellant
Through: Mr. S.B. Dandapani, Advocate
(DHCLSC).

versus

STATE ….Respondent
Through: Mr. Rajesh Mahajan, ASC for
State with Ms. Jyoti Babbar,
Advocate and Mr. Hirein
Sharma, APP.
Mr. Amit Khemka along with
Mr. Rishi Sehgal, Advocates
for the Complainant.

CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL

JUDGMENT

Dr. S. Muralidhar, J.:

1. This appeal is directed against the judgment dated 31 st January, 2017
passed by the learned Additional Sessions Judge , South East, Saket Courts,
New Delhi in Sessions Case No.200/14 (renumbered as 1204/16) arising
out of FIR No.214/14 registered at Police Station („PS‟) CR Park, New
Delhi convicting the Appellant for the offences under Sections 302, 376
and 201 of the Indian Penal Code („IPC‟). The appeal is also directed

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against the order on sentence dated 21st February, 2017, whereby for the
offence under Section 302 IPC, the Appellant was sentenced to undergo
rigorous imprisonment („RI‟) for life along with fine of Rs.10,000/-, and in
default of payment of fine, to undergo simple imprisonment („SI‟) for one
year; for the offence under Section 376 IPC, to undergo RI for ten years
along with fine of Rs.5,000/-, and in default of payment of fine, to undergo
SI for six months; and for the offence punishable under Section 201 IPC, to
undergo RI for three years along with fine of Rs.3,000/-, and in default of
payment of fine, to undergo SI for three months.

Background facts

2. The background facts of the case are that the Appellant was employed as
a domestic help of the deceased, who lived alone in the ground floor of her
house at Greater Kailash-II, New Delhi. The Appellant was employed with
the deceased by the daughter of the deceased, who lived abroad, and who
owned the ground floor. The Appellant lived in a separate servant quarter,
which was situated in the parking area of the building.

3. The first floor was owned by another daughter of the deceased, who
herself lived with her husband (PW-2) and family at Press Enclave, Saket,
New Delhi. The front portion of the third floor, owned by the deceased, had
been given on rent to a company which employed a security guard at the
gate of the building. The duty hours of the security guard were from 8 pm
to 8 am. The second floor of the building was given to the builder. It must
be mentioned here that the deceased was the owner of the entire property
which was demolished and reconstructed by a builder on collaboration.

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4. PW-2, the son-in-law of the deceased, deposed that on 6th July, 2014, he
had employed a carpenter to polish the furniture in the flat at first floor.
That work continued up to 7th July, 2014 as well. At around 10 am on 7th
July, 2014, PW-2 went to the house to supervise the work of the carpenter.
According to PW-2, the carpenter finished his job at 4 pm, after which PW-
2 paid him and left the premises at 4.15 pm for his official duties. He
returned to his residence at Press Enclave at around 7.30 pm.

5. The deceased used to go for a daily walk at around 5.30/6 pm and would
return around 7/7.30 pm. The deceased was 82 years old at the time of her
death.

Events on the fateful day

6. At around 9.15 pm on 7th July, 2014, the Appellant went to the neighbour
(PW-3) of the deceased, informing her that the deceased had not returned
from her evening walk. PW-3 apparently scolded the Appellant for
informing her so late and asked her own daughter to accompany the
Appellant to the nearby park in search of the deceased. One other common
friend informed PW-3 that she had met the deceased at around 7 pm and the
deceased had informed her that she was returning home.

7. PW-3 telephoned the daughter of the deceased (not examined), i.e. the
wife of PW-2, and informed her of her mother having gone missing. PW-3
also called the police from her mobile number, which fact is confirmed by
the Police Control Room („PCR‟) report (Ex.PW12/A). The call was made
at 9.21 pm and the precise message was “Ek lady park mein ghoomne gai
thi jo abhi tak nahi ayi”. The further message recorded on the PCR past

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midnight on 8th July, 2014 at 0033 hours notes that the dead body of the
deceased was found on the second floor in a burnt condition. It notes “jo
AC mein short-circuit se aag lagi lagta hai, aag bujhi hui hai body par chot
ka koi nisan nahi hai – inki ladi doctor bhi moka par hai – SHO or ATO
with staff moka par.”

8. ACP Rajender Pathania (PW-26) was the Station House Officer („SHO‟)
of PS CR Park. He received DD No.36-A (Ex.PW26/A) about the deceased
having gone missing. The first person to reach the place was Sub-Inspector
(SI) Virender Singh. In the meanwhile, having been informed by PW-3, the
daughter of the deceased and her husband i.e. PW-2 also reached the place.
She went upstairs to open the flat on the first floor with the key she had
brought and found it full of smoke. On entering, they found the dead body
of the deceased lying on a cot in a burnt condition. Her neck was found tied
with a chunni. She was naked from the bottom. Her salwar and panty were
lying by the side of the bed. PW-26 was informed and he along with his
staff rushed to the spot. During this entire time, the Appellant was present.

Statement of PW-2

9. PW-26 recorded the statement of PW-2 (Ex.PW-2/A), converted that into
a rukka and sent it for registration of the FIR on 12.10 am on 8 th July, 2014
to the PS where FIR No.214/14 was registered at 12.20 am. In this
statement, PW-2 talked about the carpenter having been engaged for work
on the first floor flat which had been gifted to his wife by the deceased and
about PW-2 reaching back to his residence from his official work at around
7.30 pm after having seen the carpenter off. He also adverted to the fact that

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at around 9 pm, his wife got a call from PW-3, the neighbour of the
deceased who informed her that the deceased had not returned home after
her evening walk. He mentioned how he and his wife reached the spot and
started looking for the deceased. While doing so, when his wife opened the
flat on the first floor, they found that the flat was full of smoke. They found
in the outer room inside that the bed and mattress were smouldering and on
that bed, the deceased was lying in more or less the same condition. He also
mentioned that the Appellant was at the time engaged as a full-time servant
with the deceased at the house.

Crime Team’s first visit

10. PW-26 called the crime team to the spot and the fire-brigade was also
called. A team from the Central Forensic Sciences Laboratory („CFSL‟),
CBI was also called. He also got the spot photographed and video-graphed
by a private videographer Raj Kumar (PW-5). However, when later PW-5
was examined in the trial, he said he was called to the mortuary of
Safdarjung Hospital on 10th July 2014, to photograph and video-graph the
post-mortem of the deceased, which was then handed over by him in a CD
(Ex.PW-5/A) with the photographs being marked as Ex.PW-5/1-36.

11. The crime team visit report (Ex.PW-13/A) shows that the team was
present at the spot between 10.30 pm on 7th July, 2014 to 12.30 am on 8th
July, 2014. It noted that the dead body of the deceased was found on the
bed in a burnt condition. The details of the exhibits lifted were (i) burnt
material of the bed and room; (ii) burnt AC Unit in the room on the wall. It
was further noted by SI Sanjay Kumar (PW-13) “the dead body of the

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deceased may please be sent to the hospital for post-mortem to ascertain the
cause of death.” It is not clear here that the crime team lifted any chance
prints/finger prints from anywhere in the room or from the door or knob of
the door. The crime team was also called again on 11 th July, 2014 by PW-
26, but that will be adverted to shortly.

12. The exhibits recovered from the spot (Ex.PW-2/B to G) were the
clothes of the deceased, the bed-sheet, pieces of foam from the mattress etc.
The seizure memo Ex.PW-2/B was for the following exhibits:

(i) Mobile phone, black colour Nokia make in a burnt condition, behind
which the mobile number ending with the digit 9183 was written.

(ii) The brown white lady‟s purse in a burnt condition.

(iii) A plaster-of-paris („PoP‟) piece in a burnt condition.

(iv) Earth-control sample.

13. Ex.PW-2/C was the seizure memo for seizure of a pair of chappals in a
half-burnt condition, a clump of hair and pieces of mattress-foam. Ex.PW-
2/D was for the seizure of a white and yellow bed-sheet, two pillows and a
bedcover. Ex.PW-2/E was for the seizure of a blanket, a panty and salwar.
Ex.PW-2/F was for the seizure of the mattress on which the dead body lay
and Ex.PW-2/G was for the bed.

14. The dead body of the deceased was then shifted to the hospital. The
MLC (Ex.PW-25/A) shows that she was brought to the hospital on 8 th July,
2014 at 2.45 am with the „name of the relative/friend‟ column left blank.
However, the MLC contained a noting which simply stated „Constable
Rajesh Kumar‟ i.e. PW-9 who had accompanied the dead body to hospital

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to get it preserved for the post mortem as per the directions of the SHO.
The deceased was brought there in a dead condition. It was noted that there
were 95% deep thermal and superficial burns on the body.

Arrest of the Appellant, disclosure and seizures

15. In his deposition, PW-26 states “I arrested the accused who is present in
the court today vide arrest memo Ex. PW-2/H bearing my signatures at
Point C.” A perusal of the said arrest memo (Ex.PW-2/H) shows that the
accused was arrested at the house itself on 7.30 pm on 8 th July, 2014 and
the witnesses to the arrest were the daughter of the deceased and her
husband (PW-2) apart from SI Rajiv Ranjan (PW-21). What led PW-26 to
arrest the Appellant is not clear. What is apparent is that the Appellant was
very much present throughout and made no attempt to run away or resist
the arrest.

16. According to PW-26, he conducted the personal search of the
Appellant; interrogated him and recorded his disclosure statement (Ex.PW-
2/K). PW-26 further states that on the pointing out of the accused he
recovered “the match box, a knife and kerosene oil from the room of the
accused.” He prepared pulandas, sealed them with the seal of RR and
prepared the seizure memos i.e. Ex.PW-2/L and PW-2/M respectively.

17. A perusal of the personal search memo (Ex.PW-2/J) of the Appellant
shows that two mobile phones having IMEI numbers ending with the digits
1941 and 5994 respectively, apart from Rs.250/- in cash were recovered
from him. This personal search memo is also attested by the daughter of the

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deceased and PW-2, apart from PW-22. The disclosure statement (Ex.PW-
2/K) again is attested by these three persons as is Ex.PW-2/L regarding
recovery of the box of matches and the knife and Ex.PW-2/M regarding
recovery of the plastic bottle with kerosene.

Crime Team’s second visit

18. At this stage, it must be noted that PW-26 again called the crime team
which took photographs of these recoveries (Ex.PW-8/1 to PW-8/7) and
they gave a separate report in that regard (Ex.PW-17/A). ASI Sajjan Kumar
(PW-17) was the person in charge of the District Crime Team. He along
with HC Kirti (Finger Print Expert) and Constable Ashwani Kumar (PW-8)
went to the spot. They carried out inspection of the servant quarters on the
ground floor. Importantly, PW-17 stated “our finger print expert HC Kirti
could not find any chance prints on the said articles.”

19. The crime team’s report (Ex.PW-17/A) notes that the match box, knife
and plastic bottle were lifted. The recommendation therein was to send the
exhibits for FSL examination “as early as possible”.

Seizure of clothes of Appellant

20. The police custody remand of the Appellant was taken and he was
further interrogated. He is supposed to have made a disclosure (Ex. PW-
21/E) and got recovered his t-shirt, pant and underwear, which he
supposedly had thrown in a dustbin in a park in front of S-Block of GK-2.

21. PW-26 again called the crime team which took photographs (Ex. PW-

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13/12-15) and negatives (Ex. PW-19/12-15). The crime team gave a second
report (Ex. PW-13/B). The seizure memo of the clothes of the accused was
prepared (Ex. PW-21/F). It was not attested by any independent witness but
only by SI Rajeev Ranjan (PW-21) and SI Birender Singh (not examined).

Post mortem

22. Dr Mohd. Shadab Raheel (PW-24), who was Senior Resident,
Department of Forensic Medicine at Safdarjung Hospital conducted the
post-mortem assisted by Dr Mohit Gupta. A perusal of the post-mortem
report (Ex. PW-24/A) shows that the post-mortem commenced at 12 noon
on 10th July, 2014. On the dead body was found a white kurta and white
bra that were partially burnt, wrist watch on the left forearm and a black
hair clip. Ligature material in the form of chunni was present wrapped
around the neck. It was wound in three turns around the neck with knot
lying in front of the neck. It is noted “ligature material was preserved with
the knot was being fixed with black thread and the ligature material being
cut opposite to knot its two free end tied with black thread, sealed and
handed over to IO. The two free ends of the knot measure 13 cm and 15 cm
and the long end opposite to them measure 69 cm in length. Videography of
the case was done by the IO.”

23. As far as the injuries on the external examination are concerned, four
multiple reddish pressure abrasions were found present on left side of front
of neck. There was a reddish pressure abrasion present on the right side of
the front of the neck. There was a lacerated wound present on the under
surface of the upper lip as well as under surface of the lower lip across

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midline. The following injury, which was of some significance in the
context of the present case, reads as under:

“4. Lacerated wound of size 2 cm x 0.5 cm, mucosal deep
present over 6’o clock position at the vaginal orifice along with
extravasation of blood and reddish coloured bruise of size 3 cm
x 2 cm present on lateral wall of vagina on right side.”

24. The external post-mortem injuries were basically the burn injuries with
the approximate area of the burn being 75% of the total body surface area.
Ligature mark in the form of a reddish colour pressure abrasion was present
around the neck “completing encircling the neck”.

25. As far as the internal examination was concerned, soot particles were
absent in the trachea. There was a fracture of the fifth rib present in the
midclavicular line on the left side along with extravasation of blood in the
surrounding areas. Both lungs were congested. Petechial haemorrhage was
present at interlobar surface of the lungs. Petechial haemorrhage was
present over the pericardial surface. As far as the vagina was concerned, it
was noted “collapse of posterior vaginal wall present. Rest as in injury
No.3”.

26. The specimens preserved were:

“Vaginal swab (high vaginal swab and low vaginal swab)

2. Perianal swab

3. Anal Swab

4. Body mop

5. Scalp mop

6. Vaginal mop

7. Nail Clippings of both hands

8. Ligature material

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9. Clothes

10. Blood on gauze piece
11 .Scalp hair

12. Viscera to rule out poisoning.”

27. The time since death was noted as “about 2-3 days”. As far as the
opinion as to the cause of death, it was noted as under:

“Death is due to asphyxia as a result of ante-mortem manual
strangulation. Injury No 3 is suggestive of attempted
smothering. Injury no.4 is ante-mortem in nature. Injury no 5-6
are post-mortem in nature. Injury no 1, 2 and 3 are sufficient to
cause death in ordinary course of nature, collectively.”

Medical examination of Appellant

28. It must also be noted that on 9th July, 2014 itself at 11.30 am the
medical examination of the Appellant took place. That MLC (Ex. PW-1/A)
shows that his medical examination was undertaken by Dr M.S. Bakshi
(PW-1). He opined that there was nothing to suggest that the Appellant was
incapable of performing sexual intercourse in normal circumstances. There
was no fresh external ante mortem injury present on the body. The absence
of smegma was noted. No external injury was present over the genitalia.
The samples seized were as under:

“Blood in gauze, underwear, pubic hairs, penile swab and control
swab have been preserved, sealed, signed and handed over to the
police along with the sample of seal.”

29. At this juncture, it must be noted that an un-scaled site plan was
prepared by PW-26 on 8th July, 2014 (Ex. PW-26/C to Ex. PW-26/F). What
is relevant is Ex. PW-26/D which depicts the room where the dead body
was found, which was shown as being point „A‟. Point „B‟ and „D‟ are
places where the panty and salwar respectively of the deceased were

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located. The split AC on the wall in a burnt condition was shown as point
„C‟. A view of the same room from another angle in the un-scaled plan was
Ex. PW-26/E.

CFSL Report

30. Also to be noted at this stage is the detailed report from the CFSL (Ex.
PW-15/H). This refers inter alia to the purported confession of the
Appellant to the crime about having forcibly committed sexual intercourse
with the deceased and while she was unconscious, of having killed her by
strangulating her with her own chunni. This report referred to the list of
exhibits sent for examination in five columns – column one being the serial
number, column two being the description of the exhibits, column three
titled „how, when and by whom found‟, column four being „source of
exhibits‟ and column five being the remarks. It refers to 16 such exhibits.

31. Under the subtitle „nature of examination required‟, Question 1 asks
whether any human semen is present on exhibits „D‟ to „I‟ and if yes to
prepare a DNA profile. Question 2 is to prepare a DNA profile of exhibits
„L‟, „M’, „B‟ and „R‟. These are the exhibits constituting the pulanda
containing the underwear of the deceased (L), pubic hair of the accused
(M), swab of the accused (N), blood of the accused (P), clothes of the
accused (R), salwar of the deceased (D), penile swab of the deceased (E),
perineal swab of the deceased (F), high vaginal swab of the deceased (G),
low vaginal swab of the deceased (H) and vaginal mop of the deceased (I).
Question 3 was whether any foreign material was present in Ex.J1 (nail
clipping right side of the deceased) and J2 (nail clipping left side of the

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deceased). Question 4 was whether the DNA profile of the exhibits
pertaining to the deceased matched with the DNA profile of the exhibits
pertaining to the Appellant, including J-1 and J-2. Another set of exhibits
was forwarded by the CFSL. Ex. B was the pair of chappals, bunch of hairs
of the deceased and the foam of the mattress of the bed. Ex. C was the bed
sheet, two pillows with cover and the cover of the mattress. Ex. D was the
plastic bottle with some oil, Ex. E the scalp hair of the deceased, Ex. F the
ligature material, Ex. G the clothes of the deceased, Ex. H the scalp mop of
the deceased and Ex. I the body mop of the deceased.

32. As regards these exhibits, the FSL report (Ex. PW-27/A) dated 7th
November, 2014 prepared by Dr. B.K. Mohapatra (PW-27) described all
the above exhibits. The procedure adopted and result of the examination, as
set out in the FSL report is as under:

“7. Laboratory Procedure: Biological examination of the
exhibits was carried out as per the procedures laid down in the
Working Procedure Manual, Biology Division, CFSL (CBI),
New Delhi. Further DNA isolation from the exhibits-D-1, D-2,
D-3, E, F, G, H, I, J-1, J-2, K, L, M, N, 0, P, R-1, R-2 and R-3
was carried out via organic extraction method and was
subjected to multiplex PCR amplification for fifteen STR loci
amelogenin using AmpFISTR Identifiler Plus Kit.
Genotyping of the amplified products was carried out using
automated DNA Analyzer.

Results of Examination:

8.1 Blood was detected on the exhibits: D-1, E, F, G, H, I, K
and P.

8.2 Blood could not be detected on the exhibits: D-2, D-3, J-
1, J-2, L, M, N, 0, R-1, R-2 and R-3.

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8.3 Semen could not be detected on the exhibits: D-1, D-2,
D-3, E, F, G, H, I, J-1 J-2, L, M, N, 0, R-1, R-2 and R-3.

8.4. DNA profile generated from the female fraction DNA
obtained from the source of exhiblts-D-1 (Bed Sheet), F (Perl-
anal Swab), G (High Vaginal Swab), H (Low Vaginal Swab)
and I (Vaginal Mop) was found to be consistent with the DNA
profile of the deceased (Source of exhibit-K: Blood Stained
Gauze).

8.5 Source of exhibits: D-1, F, G, H I did not yield male
fraction DNA for analysis.

8.6 Source of exhibits: D-2, D-3, E, J-1, J-2, L, M, N, 0, R-1,
R-2 R-3 did not yield DNA for analysis.

8.7 Burnt debris materials was detected on the exhibits: J-1
J-2.”

Crime Team’s Inspection Report

33. Two other forensic reports required to be referred at this stage. There is
a report titled „crime team inspection report‟ which is dated 8 th August,
2014 (Ex. PW-6/A). The signatories to the report are Ms Deepti Bhargava
(PW-6) Senior Scientific Officer, Grade-II, of the Chemistry Division of
the CFSL, CBI and Dr S.K. Chaudhary who was SSO-Physics (not
examined). The important aspects of these reports are that:

“Electrical points were checked and no shot circuiting detected
in the electrical fittings. All the doors/windows were checked.
No forceful entry or exit was detected in the house.”

34. The conclusions of the report are as under:

“Fire could have caused in this case due to application of
accelerant/fuel as smell of the same was detected in the foam
pieces lying on the double bed. There was no electrical short

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circuiting and hence fire due to electrical short circuiting is
ruled out.”

Report of Chemistry Division of CFSL

35. Then we have the report of the Chemistry Division of the CFSL which
is dated 4th March, 2015 (Ex. PW-6/B), which is again signed by PW-6. It
refers to the testing done of Ex. B (the pair of partially burnt slippers),
bunch of hairs, burnt foam pieces, Ex. C (partially burnt bed sheet, burnt
pillows with cover, partially burnt foam mattress), Ex. D (plastic bottle with
live bluish brown liquid, Ex. E (whitish black colour bunch of hairs, stated
to be the scalp hair of the deceased), Ex. F (light brown colour cloth piece
with blood thread (the ligature material), Ex. G (partially burnt embroider
from colour kurta, Ex. H (scalp mop of the deceased) and Ex. I (body mop
of the deceased). The result of the examination was as under:

“8.1 The exhibits 8, C, F and G gave positive test for the
presence of residues of Kerosene.

8.2 The exhibit D gave positive tests for the presence of
Kerosene.

8.3 The exhibits E, H and I gave negative tests for the
presence of residues of petroleum products.”

Chemical Examination report

36. Then we have the chemical examination report (Ex. PW-6/C) which
tested four exhibits. Ex.1 was the visceral material (stomach with contents
with pieces of small intestine), Ex.2 was the visceral material containing
liver section, spleen and half of each kidney, Ex. 3 was the sample of
preservative used with saturated solution of common salt and Ex. 4 was the

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blood sample of the deceased. While Ex. 4 gave positive tests for presence
of carbon monoxide, Ex.1, 2 and 3 gave negative tests for the presence of
common poison.

Charge sheet

37. PW-26 prepared and filed the charge-sheet on 27th August, 2014. The
key conclusion drawn by PW-26 in the said charge-sheet was that after the
deceased returned from her walk, the Appellant first raped her in the outer
room on the first floor of the house and then strangulated her with a chunni.
He then got scared and wanted to change the entire scenario having
watched what happened in films and TV serials and, therefore, set the room
on fire and then quietly came back into his own room. When he noticed that
his own clothes were soiled, he took all of them and on the pretext of
searching for the deceased, went to the S-Block and threw them into the
dustbin there. Basically, the entire disclosure statement of the Appellant
was made the very basis for the above conclusion.

38. The trial Court framed the charges against the Appellant as noticed
hereinbefore vide order dated 24th September, 2014. The Appellant pleaded
not guilty and claimed trial.

Trial

39. The prosecution examined 28 witnesses. The Court has already
adverted to the deposition of PW-1, the doctor who examined the
Appellant.

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40. PW-2 was the son-in-law of the deceased. He was first examined-in-
chief on 10th November 2014, but the further examination-in-chief was
deferred for want of case property. For the next six months, nothing
happened. The examination-in-chief recommenced on 7th May 2015. His
cross-examination took place on 27th May 2015. The significant statements
made by him now were that no CCTV camera was installed at the first
floor, but there was one installed at the ground floor where the deceased
used to live. He also stated that “police did not seize any footage of CCTV
from the ground floor in my presence”. He mentioned that his family used
to visit the first floor twice in a week to get it cleaned and maintained.

41. PW-2 stated that the deceased also had a driver Man Singh and a cook
Bhuvan, who used to cook food for her and remained at the premises from
8 am to 5 pm. When they reached the spot on the night of 7 th July 2014, the
driver and cook were not present. It is significant that neither the driver
Man Singh nor the cook Bhuvan were examined by the prosecution as PWs.
PW-2 claimed to have made three or four calls on the mobile number of the
deceased before leaving his house that night, but it was switched off. The
other important facet of his cross-examination was his statement that:

“No key was seized by the police in my presence nor any search
was made by the police. The deceased used to have duplicate
key of the main door of our first floor with her which was given
to her by my wife right from the time when the building was
constructed. It is wrong to suggest that deceased did not have
any such key nor it was given to her by my wife.”

42. PW-2 then spoke of the carpenter engaged by him and stated as under:

“The carpenter had left the house at about 6.30 PM on

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06.07.2014. On 07.07.2014 the carpenter had finished the work.
The carpenter had done polishing work of the table in the rear
bedroom at the first floor. Before leaving the flat carpenter had
cleaned the house.”

43. PW-2 also introduced another character into the scenario being a girl
engaged for cleaning the house twice a week. This girl incidentally was not
examined as PW.

“More so, a girl was also engaged for cleaning the house twice
a week. On that day she had also cleaned our flat after carpenter
left the house after taking the duplicate key from the deceased.
This fact was told to me by my wife. She was not present at that
time at the fiat.”

44. PW-2 further stated that “on 7th July 2014 when he left the flat at
around 4.15 pm, he did not meet the deceased.”

45. On 27th May 2015, for the first time in his cross examination, which he
did not speak about in his examination-in-chief, PW-2 introduced yet
another character into the scenario namely „Security Guard Santosh‟. This
security guard would later be examined as PW-28 after PW-2 filed an
application before the trial Court under Section 311 Cr PC at a stage when
the final arguments had concluded. PW-2 stated on 27th May 2015 in his
cross-examination as under:

“Security Guard Santosh had told me the facts which I have
narrated in my examination In chief after about 40-45 minutes
when we settled at the place of incident and after discovery of
the body. I had also personally enquired from the Security
Guard about the said facts. I had told the said facts to the police
in the same night at about 1.00 AM. I do not know if police had
made enquiry from the said guard.”

Crl.A.694/2017 Page 18 of 83

46. In fact, it is confirmed by learned APP that the statement of the said
security guard was not recorded by the IO under Section 161 Cr PC and
does not form part of the trial Court record. A person who claimed to be
that security guard deposed for the first time when he was summoned as a
PW after the arguments in the trial Court concluded.

47. It must also be mentioned here that the APP informed the Court that
there is a mention in the case diary about this security guard having been
spoken to by the IO. The failure of the IO to record his statement under
Section 161 Cr PC and not to mention the security guard as one of the PWs
in the charge-sheet accounts for a serious lapse in the investigation, which
does not have a reasonable explanation. It must be noted here that there was
no whisper of any statement by PW-28 in the charge-sheet filed by the IO
in the trial Court on 27th August, 2014. PW-2 stated in his cross-
examination on 27th May, 2015 that “police had not recorded my statement
with regard to the facts narrated to me by the security guard”.

48. The other PWs examined included Raman Anand (PW-4), the brother
of the deceased, who identified her body at the Safdarjung hospital
mortuary. The other son-in-law of the deceased, who lived abroad, was
examined as PW-14. He confirmed that on 7th July, 2014 at around 9/9.30
pm Indian Standard Time („IST‟), he received a call from the Appellant,
who informed him that the deceased had not returned from the park where
she used to go for her evening walk. He then asked the Appellant why he
was informing him so late, to which the Appellant stated that he had tried to
locate the deceased first but was unable to do so. Thereafter, the wife of

Crl.A.694/2017 Page 19 of 83
PW-14 (the daughter of the deceased) also got confirmation of the same
from the neighbour of the deceased. PW-14 confirmed that the Appellant
had been employed by him through his friend to take care of the deceased.

Security Guard summoned

49. On going through the trial Court proceedings, it is seen that the final
arguments commenced on 26th April, 2016. The arguments were then again
heard on 24th May, 2016 and concluded. The proceedings of 19th July, 2016
read thus:

“19.07.2016
Present: Mohd. Iqrar, Ld. Addl. PP for the State
Accused in JC.

Written submissions filed on behalf of the complainant. Copy be
supplied to the State and the accused.

The case is listed for orders on 06.08.2016.”

50. It is at that stage on 27th July, 2016 that the complainant appeared in
person before the trial Court with the handwritten application, and this was
in the absence of the APP or the counsel for the accused. The order passed
on that date reads as under:

“27.07.2016
Present: Sh. __(PW-2), complainant.

File taken up on an application moved on behalf of the
complainant for summoning Santosh, Night Guard stationed at
the property at the time of offence. It is stated that the IO had
examined him during the investigation but did not cite them as
witness though he is a material witness in this case. He can
throw light on the circumstances of the present case. It is stated

Crl.A.694/2017 Page 20 of 83
that the complainant is a senior citizen made all our efforts to
trace Santosh and now he has been located.

Issue notice of this application to the counsel for the accused.

Put up on 06.08.2016, the date already fixed.”

51. Therefore, at a stage when the matter had already been reserved for
orders on the conclusion of the arguments, the above application of PW-2
was entertained by the trial Court and notice was issued in the absence of
the Special PP and the Appellant. On 6th August, 2016, the learned trial
Court Judge was on leave and the matter was then listed on 11th August,
2016. At this stage, the learned Special PP, Mr Ansari, supported the
application. The Special PP now told the Court that the said witness could
not be produced as he “was not traceable” and that although the case was
listed for orders, an application under Section 311 Cr PC could be moved at
any stage till the judgment is pronounced. The learned counsel for the
Appellant stated that she had no objection and accordingly the application
was allowed and PW-28 was summoned as a PW.

52. On 1st September, 2016, PW-28 was examined. He stated in his
examination-in-chief that he was deputed by „Pratiksha Securities‟, in
Gurgaon, to work as a security guard at the premises and that he had
worked there for about one month between June and July, 2014 and that on
7th July, 2014, he was working as such and his duty hours were from 8 pm
to 8 am. According to him, whenever he would reach the premises for duty
at around 8 pm, he used to ring the bell of the ground floor, where the
deceased was residing and she would come out to the balcony. Sometimes,

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she used to come downstairs and would ask him whether he wanted water,
tea, bread, etc. The deceased used to mark his attendance for duty.

53. According to PW-28, on 7th July 2014 at around 7.50 pm, when he
came for duty, he rang the bell of the deceased on the ground floor, but she
did not come out and did not respond to the bell. While he was waiting and
wondering what to do, PW-28 saw the Appellant coming downstairs
hurriedly who told him:

“”santosh tum aa gaye ho, jahan baithe ho baith jao, mataji
abhi aram kar rahi, mai unhe bata dunga ki tum duty pe aa
gaye ho”

54. PW-28 then said:

“Thereafter, the accused went upstairs. Accused is present in the
Court today correctly identified by the witness). At that time,
accused was looking strange and appeared to be scared and
nervous. I did not see mataji on that day at all.”

55. According to PW-28, after about an hour, the Appellant came
downstairs from the premises but PW-28 could not state from which floor
he came. The Appellant came to PW-28 and sat next to him. PW-28 stated
that at the time, he looked quite nervous and started murmuring stating that
the deceased had gone for her evening walk but had not returned. PW-28
then confronted the Appellant and said when he had first reached for duty,
the Appellant had told him that the deceased was taking rest upstairs and
now he was saying that she had not returned from her evening walk. The
Appellant then got up and told PW-28 that he was going to inform the
neighbour of the deceased.

Crl.A.694/2017 Page 22 of 83

56. PW-28 then spoke about the neighbour subsequently calling the police
and four police officials reaching the premises, as well as the daughter and
the son-in-law i.e. PW-2 also coming there. He then stated, “police did not
make any enquiry nor recorded my statement.” He also stated that during
the time when the Appellant was upstairs after he had reached for duty, he
saw no one else neither did he talk to anyone up till the time the Appellant
came back downstairs and sat next to him as mentioned above.

57. In his cross-examination on 17th September 2016, PW-28 claimed that
the company that employed him, did not issue any I-card to him. He further
stated:

“I do not have any documentary proof as to my employment
with that company. The company did not get my police
verification done when the company employed me as Security
Guard. I left the job as I wanted to earn more. I was earlier in
the profession of driver. I thought that I would earn more by
driving. One of the reason of leaving the job was that such
incident had happened.”

58. He also stated that the company had provided him with the uniform but
had deducted the amount for it and so, he did not return it to the company.
He received Rs.8,000/- in cash from the company. According to him,
during the time from 8 pm to 11 pm when he was on duty, no one talked to
him. He claimed not to have met PW-2 before coming to the Court and
denied that he had come to the Court on the asking of PW-2 or that he was
deposing falsely at his instance.

Statement of Appellant under Section 313 Cr PC

59. The statement of the Appellant under Section 313 Cr PC was first

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recorded on 25th February, 2016 i.e. much before the examination of PW-

28. He admitted as correct the following facts:

(i) The deceased was the owner of the property.
(ii) She was 81 years old.

(iii) About 2/3 years ago, she had got the property reconstructed from a
builder on collaboration.

(iv) She was living on the ground floor.
(v) She had gifted the ground floor to her daughter (the wife of PW-14)

who was, at the time, living in America with her family.

(vi) The first floor was gifted by the deceased to the wife of PW-2, her
other daughter.

(vii) The second floor was owned by the builder.

(viii) The third floor was also owned by the deceased and she had rented
the front portion of that flat to a company based in Gurgaon and the
rear portion was in her possession.

60. In response to the second question whether the deceased had employed
a carpenter on 6th July, 2014 and that work continued till 7th July, 2014, the
Appellant denied it and stated, “she did not employ any carpenter”. He also
admitted as correct that PW-2 had come to the premises at around 10 am. .
However, he did not know the time when PW-2 had left. He admitted as
correct that PW-3 was a neighbour and a close friend of the deceased and
that at 9.15 pm, he had gone to PW-3 and told her that the deceased had not
come back from her walk.

61. The whole set of circumstances was put to him as far as Question No.6

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is concerned, that PW-3 had scolded him for informing her so late; she then
asked her daughter to go with the Appellant to search for the deceased in
the park; that PW-3 also made calls to her friends; that Ms Jolly, a common
friend informed PW-3 that she had met the deceased at around 7 pm who
told her that she was going home; that PW-3 informed the wife of PW-2
about the deceased being missing and also calling the police and about PW-
3 receiving calls from the wife of PW-14.

62. The Appellant stated that all the above were correct except the fact that
Mrs. Jolly, the common friend had informed PW-3 that she had met the
deceased at around 7 pm, and that the deceased had informed her that she
was going home. The Appellant admitted as correct about PW-2 and the
daughter of the deceased rushing with their son to the premises; that it
usually happened that the deceased used to leave for her evening walk by 6
pm and return by 7/7.30 pm. He also admitted as a matter of record that the
PCR motorcycle reached the premises at 9.45 pm and the Beat Officer HC
Sube Singh (PW-22) also reached there and then the Duty Officer at PS CR
Park was informed and then the SHO came. The Appellant admitted that it
was a matter of record that PW-2 found the two police officers on
motorcycle when he reached there and that PW-2 asked his wife to check
the ground floor to see if the deceased had fallen down since she was a
patient of asthma.

63. The Appellant denied that the wife of PW-2 gave photographs of the
deceased to the police. He admitted as correct that he was working as a
domestic help with the deceased and that Bhuvan, another servant, would

Crl.A.694/2017 Page 25 of 83
cook food for her and would also remain from 10 am to 5 pm. He also
admitted as correct that PW-2 asked his wife as well as the Appellant to
check the roof of the house; that PW-2 had found the Appellant standing
outside the house and PW-3 told PW-2 that it was the Appellant who
informed her that the deceased had not returned from the evening walk; that
the other daughter of the deceased had employed him to look after the
deceased.

64. Q. No.17 and the answer given by him read as under:

“Q 17 It is further in evidence against you that PW2 then asked
his wife to check the first floor as PW2 had thought that the
deceased might have gone there to check water tap / switches
which she was habit of checking and further at around 5 p.m.,
the first floor was clean by a part time domestic help. What
have you to say?

Ans. It is correct that PW 2 asked his wife to check the first
floor but it is incorrect that deceased was in the habit to check
the water tap/switches of first floor. I do not know whether the
first floor was cleaned at about 5.00 p.m.”

65. He admitted as correct that the minute the wife of PW-2 entered the flat
on the first floor, she came rushing out stating that it was „on fire‟. He
admitted as correct that the door of the flat had an automatic lock and that it
was opened by the wife of PW-2. He denied that one key of the said flat
used to remain with the deceased.

66. Incidentally, it must be pointed out that this key, which according to the
prosecution was with the deceased was never recovered and no attempts
were made to even find out where it was. The Appellant denied having told

Crl.A.694/2017 Page 26 of 83
PW-2 that the deceased was lying on the bed. On how the deceased was
found in the room, he stated that PW-26 reaching the spot, being informed
by SI Virender that there was a dead body on the first floor, finding the
body in burnt condition were all a matter of record. However, he added that
“No chunni or cloth like material was tied on the neck of the
deceased. Neither the deceased was naked from bottom nor her
salwar or panty were lying by the side of the bed.”

67. As for his disclosure statement (Ex. PW-2/K), the Appellant denied
having made any such disclosure. He admitted that police interrogated him
when they met him first on 7th July, 2014, and stated, “my signatures were
obtained on some blank papers by the police.” On the recovery of the match
box, knife and plastic bottle from his quarters, he denied such a recovery.
He stated, “nothing was recovered at my instance.” He answered that the
factum of the crime team coming there as well as his own medical
examination and the taking of the exhibits in the course of such medical
examination were all matters of record. He admitted that the wife of PW-2
was present during all this, but according to him, she did not sign any
document in his presence.

68. The Appellant admitted as a matter of record the subsequent
proceedings, including the shifting of the dead body to the hospital, then to
the mortuary as well as the post-mortem. He admitted as correct that police
remand was obtained but he was never interrogated and did not make the
further disclosure statement (Ex.PW-28/E). He denied the recovery of T-
shirt, pant and underwear from the dustbin in front of S-Block. He further
stated:

Crl.A.694/2017 Page 27 of 83

“The recovery is planted upon me by the police officials as they
have already taken the said clothes from my room before taking
me into custody in the morning of 08.07.2014.”

69. Question Nos.43 to 46 concerning the security guard and the answers
thereto read as under:

“43 It is in evidence against you that the security guard namely
Santosh was also there when PW2 reached the spot. He was
engaged by the third floor tenants of the deceased for the
security of the building. What have you to say?

Ans. It is correct.

Q 44 It is in evidence against you that PW2 had also asked from
the security guard Santosh if he had seen the mother-in-law
PW2 returning to her place when he joined duty at about 8 p.m.
as she used to return from the park at around 7:30 p.m. as
Santosh also used to ring the bell of the first floor flat when he
used to come to his duty and the deceased used to ask from her
after coming out from the balcony if he needs anything that is
tea / water etc. What have you to say?

Ans. It is correct that PW2 had also asked from the security
guard Santosh if he had seen the mother-in-law PW2 returning
to her place when he joined duty at about 8 p.m. It is incorrect
that Santosh also used to ring the bell of the first floor flat when
he used to come to his duty and the deceased used to ask from
her, after coming out from the balcony if he needs anything that
is tea / water etc.

Q 45 It is in evidence against you that Santosh told PW2 that
when he came on duty at 8 p.m., he as usual ran the bell but she
did not respond and that he had seen you coming down through
stairs to the parking area where Santosh used to sit for duty.
What have you to say?

Ans. It is incorrect.

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Q 46 It is in evidence against you that Santosh also told PW2
“tum duty pai aaye ho, jahan baithe ho baith jao, mataji uppar
hain, main unko bata doonga ki tum duty par aa gaye ho”. What
have you to say?

Ans. It is incorrect. I never told above said facts to Santosh.”

70. According to the Appellant, he along with other domestic help was
interrogated by the police during the period of investigation. Question
No.51 and the answer thereto are also significant and read as under:

“Q 51 It is in evidence against you that when PW2 asked from
you as to what you had done as the deceased was her
grandmother’s age, you then told without any remorse on your
face “rape kiya hai”. On hearing, PW2 was shocked. What have
you to say?

Ans. It is incorrect. I did not say anything to PW-2. The said
fact is concocted by PW-2.”

71. In response to Q. No.61, he again denied having made any disclosure
statement to the police or having got recovered the match box or plastic
bottle containing kerosene or the T-shirt, pant and underwear. His answers
to Q. Nos. 63, 64, 65 and 66, as given by him on 25 th February, 2016 read
as under:

“Q 63 Why this case is made against you?

Ans: The police officials could not investigate the case. They
were under heavy pressure of their higher authorities and media
to solve the case in time. I was living alone in the same building
and was working in the house of the deceased for whole day.
The police in order to dose the investigation of the case, in
connivance with PW-2, falsely implicated me in this case. I
have not committed any crime as alleged by the police.

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Q.64 Why PWs deposed against you?

Ans. They are interested witnesses and have deposed under the
influence of the IO.

Q. 65 Do you want to lead evidence in defence?

Ans. No.

Q. 66 Do you want to say anything else?

Ans. I am innocent. I have been falsely implicated by the police.
I came around 7 pm on the ground floor from my servant
quarter and when I could not find the deceased in the house, I
informed the same to the neighbour and made search for the
deceased In the meanwhile, I informed the daughter of the
deceased who is living in USA. I always cooperated the police
officials during the investigation. I did not try to escape and
remained present during the whole investigation. I never used to
go in first floor nor I had any keys of the said floor.”

72. After the deposition of PW-28 was recorded, a supplementary statement
of the Appellant under Section 313 Cr PC was recorded on 17th September,
2016. Therein, he denied having seen PW-28 at the premises as a security
guard on duty. According to him, PW-28 never worked as a security guard
there. He denied that he had had any conversation with PW-28 and claimed
that he was in his room and sleeping. He denied that PW-28 had met PW-2
at 11 pm on 7th July, 2014. Question Nos. 12 and 13 in the supplementary
statement and the answers thereto read as under:

“Q.12 Why PW28 has deposed against you?

Ans. He has been deposing at the instance of _(PW-2). He is
an introduced witness.

Crl.A.694/2017 Page 30 of 83

Q.13 What else do you want to say in this case.
Ans: I am innocent. PW28 never remained posted as Security Guard
at the aforesaid premises. He is an introduced witness and has
deposed falsely at the instance of _(PW-2) to falsely implicate me
in this case.

Q.14 Do you want to lead evidence in defence.

Ans: Yes.”

Defence evidence

73. The Appellant then examined himself as DW-1 pursuant to an
application filed under Section 311 Cr PC, which was allowed on 6 th
October, 2016.

74. The Appellant’s deposition in examination-in-chief was virtually his
version of the incident about the deceased not returning from her walk till 8
pm, about his going to the ground floor to search for her, about his calling
her on her mobile thereafter which was switched off, about his going to the
third floor to search for her since he had a key of that flat, then going to the
lady neighbour and informing her, then going to the park to search for the
deceased, thereafter calling the deceased‟s daughter in USA, about the lady
neighbour telephoning the wife of PW-2 and then the police officials
coming there, about them going to the terrace to search for her, the police
enquiring from PW-2 and his wife once they arrived about the flat on the
first floor and then all of them going there and the wife of PW-2 opening
the flat, which when opened was dark and there was smoke coming out.

75. In his cross-examination by the Special PP, the Appellant stated that he

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did not know if the key of the first floor used to be with the deceased or that
he was deliberately concealing this fact. He denied the suggestion that the
deceased used to go to the first floor after it was cleaned up by the maid to
see if some light was left switched on or the water tap was left on. On the
aspect of the security guard, he stated as under:

“It is correct that I used to interact with that guard. He was
working there as security guard when I had started working as
a servant of mataji. It is wrong to suggest that when that guard
came on duty, he asked me about mataji and I told him that
“Santosh tum aa gaye ho jahan baith te ho baith jao, mataji
abhi aram kar rahi, main unhe bata dunga ki tum duty par aa
gaye ho”. I cannot at what time the said guard came on duty on
that day.

76. He further stated about the security guard as under:

“It is wrong to suggest that I told that guard that mataji was not
present on either of the aforesaid flats. I do not know the name
of that guard. It is wrong to suggest that the name of that guard
is Santosh who had appeared in the Court and identified me
being the servant of mataji or that I am deliberately concealing
this fact. It is correct that in between time 8 to 9 p.m. that guard
had also not gone to either of the flat nor any person from
outside came in the building.”

77. On being asked specifically about the kerosene oil bottle, the Appellant
stated “the police handed over me that bottle and asked me to keep the same
in the kitchen.” According to him, there was a common kitchen for the four
servant quarters in the parking area. He denied the suggestion that the
deceased used to call for the kerosene oil to clean the machine or that it
used to kept in the servant quarters or that he had used it to burn the body.
He stated that there was no pipeline gas connection in his quarters and that

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he was given a cylinder to cook food.

78. On 8th November, 2016, an application under Section 311 Cr PC was
filed for recalling the Appellant (DW-1). This was allowed. The Appellant
added that on the day of the incident, Bhuvan came to cook food at the
ground floor flat and he Appellant himself went to sleep in servant quarters.
The deceased used to call him to serve food to her, but on that date, she did
not call him. He tried calling her on her telephone but as it did not connect,
he went upstairs and found that at the time, the deceased was not there. The
Appellant denied that he was improving his defence or concocting a false
story about the presence of Bhuvan. He admitted as correct that Bhuvan
used to come to cook food at 10 am but claimed that he did not know if he
used to go back at 5 pm.

79. The final arguments thereafter took place on 1 st December and 15th
December, 2016.

Impugned judgment of the trial Court

80. The trial Court in its impugned judgment listed out what according to
the trial Court were the circumstances that formed a complete chain which
pointed unerringly to the guilt of the accused. In para 29 of the judgment, it
was noted as under (names concealed by this Court):

“1. The deceased was an old lady aged about 81 years. She used
to live alone at the ground floor of the house No. __, Greater
Kailash-II, New Delhi. The accused was the full time servant of
the deceased to take care of her. He was employed by her
daughter namely who used to live in USA. The accused
used to live in the servant quarter at the parking of the building.

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2. The first floor was in the occupation of the younger daughter
of the deceased namely who lives with her family at Press
Enclave, Saket. The front portion of the third floor was on rent
to a company which had employed a Security Guard at the gate
of the building and his duty hours were from 8.00 p.m to 8.00
a.m.

3. The deceased used to go for evening walk in the park near
her house at about 5.30/6.00 p.m and come back at about 7/7.30
p.m.

4. On 07.07.2014 at about 5.30 p.m, the deceased as usual went
for the evening walk in the park near her house but went
missing.

5. The accused informed the daughter of the deceased namely
in USA and PW3 , her neighbour about the missing of
the deceased at about 9.00/9.15 p.m and PW3 informed the
another daughter of the deceased namely __, wife of PW2 about
her missing, (information qua fictitious missing of the deceased
to PW3 that too at about 9.00 p.m though the deceased used
to return from the park at about 7.30 p.m to thwart the detection
of crime at an early stage and to create confusion.)

6. The dead body of the deceased was found in burnt condition
in the bedroom on the first floor of the house No. S-93, Greater
Kailash-II, New Delhi at about 10.00 p.m.

7. The deceased was raped before her death.

8. The death was homicidal not the natural one. The deceased
was set on fire after her death by the offender with the intention
to cause the evidence to disappear to screen himself from legal
punishment.

9. The exclusive presence of the accused at the place of
occurrence in the said building between 8.00 p.m to 9.00 p.m
when the death had taken place. (no one except the accused

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entered and came out from the ground floor and first floor of the
building between 8.00 p.m to 9.00 p.m, the time when the death
had taken place).

10. The conversation held between PW28 Security Guard
Santosh and the accused coupled with his abnormal/unusual
conduct of going upstairs at about 8.00 p.m and coming back
downstairs at about 9.00 p.m after an hour which was the time
when the offence took place.

(Meeting of the accused with the Security Guard PW28 when
he came on duty at 8.00 p.m and rang the bell and his telling to
the Security Guard not to disturb the deceased and stating that
she was sleeping, he would inform the deceased about his
coming. At about 9.00 p.m, he told the Security Guard that the
deceased has yet not returned from the evening walk.)

11. Continuous presence of the accused at the scene of crime to
give an appearance that he was not involved in the crime.

12. The disclosure statements of the accused and the recovery
of the incriminating material from the possession and at the
instance of the accused.

13. Contradictory and inconsistent statements by the accused
with regard to the presence of the Security Guard PW28.

14. Motive of the murder.”

81. The trial Court held circumstances 1 to 3 as proved. Even circumstances
4 and 5 were held to be proved on account of the testimonies of PWs. 2, 3
and 21 notwithstanding the failure of the IO to collect the CDRs of the
mobile phone of the deceased despite the fact that the deceased had had a
conversation with her relative at around 7.55 pm and the same could have
confirmed if she had gone for her walk to the nearby park at around 5.30

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pm, which was her usual time. The trial Court held that circumstance No.6
stood proved conclusively. According to the trial Court, in view of the
testimony of PW-2 and with one key of the first floor remaining with the
deceased:

“there was every possibility for the deceased going to the first
floor to check the taps and the switches on the day of alleged
incident after coming from the park.”

82. As regards circumstances No.7 and 8, the trial Court referred to the
medical evidence and came to the conclusion that in view of the testimony
of PW-24 and the testimonies of the scientific officers i.e. PWs-6 and 27:

“it is crystal clear that the deceased was first raped and then
strangulated to death.

83. The trial Court further observed in para 47 that after the deceased was
strangulated to death, the assailant cut pieces of the mattress and used
kerosene oil to show that the death resulted due to fire on account of short-
circuit but the CFSL report and the report of the fire officer ruled out that
possibility. This showed that the body was set on fire after death. The
prosecution had examined all witnesses to rule out possibility of tampering
with the body or the material seized during investigation. The prolapse of
the vaginal wall, the lacerated wound present over 6 o‟clock position at the
vaginal orifice along with extravasation of blood and reddish coloured
bruise on the lateral wall of vagina on the right side was “suggestive of
forcible sexual penetration.” PW-24 had stated that those injuries “could be
due to penetration or penetrative attempt.” It was noted that “it is not
necessary that every penetration would always result into discharge or
emission of semen. Simple penetration would amount to rape as defined

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under Section 375 IPC.” There were external post-mortem injuries which
were not ante mortem and suggested that they were caused after the death
of the deceased. The absence of soot particles in the trachea of the deceased
was clearly suggestive of the fact that the burn injuries were caused after
the death of the deceased. These facts showed that:

“the assailant after committing the rape and strangulating the
deceased to death, in order to disappear the evidence, burnt the
body using the kerosene oil. The presence of kerosene oil is also
proved from the CFSL report Ex. PW 6/B.”

84. The trial Court noted that the testimony of PW-3 about Mrs. Jolly
having met the deceased in the park at around 7 pm and the discovery of the
body at about 10 pm clearly showed that the death had resulted after 7 pm
and before 10 pm. It was thus proved that the deceased was raped before
her death and the death was homicidal. The deceased was set on fire with
the intention to cause evidence to disappear. The assailant wanted to screen
himself from legal punishment. Consequently, circumstances 7 and 8 stood
proved.

85. As regards circumstances 9 to 13, the trial Court came to the conclusion
that:

(i) The evidence showed that no one except the accused entered and
came out of the ground floor and first floor of the building between 8
and 9 pm, the time the death had taken place.

(ii) The conversation between the Appellant and PW-28 coupled with his
abnormal conduct of going upstairs at 8 pm and coming downstairs at
9 pm, the continuous presence of the accused at the scene of crime to

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give an appearance that he was not involved, the disclosure
statements and recovery of incriminating material at the instance of
the accused, the contradictory and inconsistent statements by the
accused with regard to the presence of PW-28 all led to the
conclusion that it was the Appellant who was guilty of the crime and
that these circumstance stood proved by the prosecution. According
to the trial Court, since the prosecution had established the exclusive
presence of the Appellant during the period when the incident took
place, the burden was on the Appellant to explain the circumstances.
Thus:

“If the person is last seen with the deceased, he must
offer an explanation as to how and when he parted
company with the deceased. 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 the burden. In a case resting on
circumstantial evidence if the accused fails to offer a
reasonable explanation in discharge of the burden placed
upon him by section 106 of the Evidence Act, that itself
provides an additional link in the chain of circumstances
proved against him.”

86. The Appellant gave false replies; got recovered the kerosene oil, knife
and match box which he used in the commission of the crime and,
therefore, his false statement and total denial “completely show that it was
he and only he who committed the said act.”

87. Although there were no public witnesses to the recoveries of the
kerosene oil, knife and match box and there were no chance prints on the
said articles, it was noted that “nothing can be inferred on the appreciation

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of the testimony of the above witnesses (i.e. PWs-2 and 26) that the above
articles were planted on the accused.” The place from where the recoveries
were effected was in exclusive possession of the Appellant and no one else
had access to that room. Therefore, it could not be said that it was a planted
recovery. The fact that the deceased was set on fire after the murder to give
a colour that she had died of burn injuries was proved by the said
recoveries. The testimonies of PWs-2, 21, 26 and 28 and the medical and
CFSL reports “proved the exclusive presence of the accused at the scene of
the crime.” The failure of the CFSL reports to inculpate the Appellant was
not fatal to the case of the prosecution.

88. The Appellant was capable of performing sexual intercourse under
normal circumstances. In order to give a colour that the deceased had died
due to fire, her body was set on fire using kerosene oil. Thus, the Appellant
had tried to make the evidence disappear. He tried to create an illusion to
the neighbour and the daughter of the deceased that he did not know
anything “though everything was in his knowledge.” He was looking
nervous after the incident as was evident from the testimony of PW-28. It
was noted that “he also changed his statement from time to time which
made his conduct highly suspect and his conduct as deposed by some of the
prosecution witnesses does not fit in with the normal human conduct of a
guilty person. By normal standards, this certainly is a very unusual
conduct.” The trial Court held that the evidence of false explanation was
relevant under Section 8 of the IEA but was of considerable importance
when it was “given soon after the alleged occurrence and was apparently
designed to give to the facts and appearance favourable to the accused.”

Crl.A.694/2017 Page 39 of 83

Accordingly, the trial Court held that circumstances 9 to 13 also stood
proved.

89. As regards the motive for murder which was circumstance No.14, the
trial Court observed that “no direct / circumstantial evidence came as to the
motive of the accused to commit the said offence.” But as explained in
Krishna Pillai Sree Kumar v State of Kerala AIR 1981 SC 1237 it was not
“a sine qua non for the success of the prosecution that the motive must be
proved. So long as the other evidence was convincing, a conviction could
be written even without proving the motive.” According to the trial Court,
there was sufficient incriminating evidence which conclusively proved that
“it was the accused and only the accused who did the said act.” There was
no reasonable doubt, the benefit of which could be given to the Appellant.
To avail such benefit, the doubt has to be “actual and substantive” and
should not “be mere vague apprehensions.”

90. The conclusion of the trial Court was that the prosecution had proved
that:

“it was the accused and only the accused who raped the
deceased, strangulated her to death and then set her body on fire
causing the evidence of the offence disappear with an intention
to screen himself from the legal punishment which are the
foremost ingredients of the offences punishable u/s 376, 302
and 201 IPC.

91. The trial Court then proceeded to sentencing the Appellant in the
manner indicated herein before by the separate order on sentence dated 21 st
February 2017.

Crl.A.694/2017 Page 40 of 83

92. The Appellant was represented before this Court, as he was in the trial
Court, by a legal aid counsel. Before the trial Court, he was represented by
Ms. Kavita Yadav, Advocate and for the State there was a Special PP Mr.
A.T. Ansari. In this Court, Mr. S.B. Dandapani, on the panel of the Delhi
High Court Legal Services Committee, appeared on behalf of the
Appellant. The State was represented by Mr. Rajesh Mahajan, learned
Addl. Standing Counsel and Mr. Hirein Sharma, learned APP for State.
Written submissions have been filed both by Mr. Dandapani and the
counsel for the State. Separate written submissions have been filed on
behalf of the „Complainant‟ by Mr. Amit Khemka, Advocate.

Law relating to circumstantial evidence

93. At the outset, it must be noticed that this is a case based on
circumstantial evidence. In State of Tamil Nadu v. Rajendran (1999) 8
SCC 679 the Supreme Court held:

“… the law is fairly well settled that in a case of circumstantial
evidence, the cumulative effect of all the circumstances
proved, must be such as to negative the innocence of the
accused and to bring home the charge beyond reasonable
doubt. It has been held by a series of decisions of this Court
that the circumstances proved must lead to no other inference
except that of guilt of accused.”

94. In Trimukh Maroti Kalan v. State of Maharashtra (2006) 10 SCC 681,
the Supreme Court held:

“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;

Crl.A.694/2017 Page 41 of 83

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 his innocence.”

Circumstances not disputed

95. Although the trial Court has listed out as many as 14 circumstances in
its impugned judgment, many of the circumstances are actually undisputed
facts appearing from the record. In other words, the following
„circumstances‟ have not been disputed, even by the Appellant as was
evident from his answers under Section 313 Cr PC:

(i) The deceased, aged 81, lived alone in the ground floor of the
house at GK-2.

(ii) The Appellant was her full time servant. He had been employed
by the daughter of the deceased whose husband is PW-14, both of
whom lived in USA.

(iii) The Appellant used to live in the servant‟s quarter which was in
the parking area of the building.

(iv) The flat on the first floor of the building had been gifted by the
deceased to her other daughter who lived in Delhi whose husband
was PW-2.

(v) The flat on the ground floor of the building, which had actually
been gifted to the daughter who lived in the USA, was occupied
by the deceased. The deceased herself retained the flat on the third
floor, the front portion of which was given on lease to a company

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and the rear portion of which was in the possession of the
deceased.

(vi) On 6th and 7th July 2014 a carpenter had been engaged by PW-2 to
work in the flat on the first floor. That carpenter worked in the
said flat till around 4.15 pm on 8th July 2014. PW-2 was also
present supervising his work, and had paid the carpenter before
leaving, without meeting the deceased that evening.

(vii) The deceased left for her walk as usual at around 5.30 p.m. but
after that was not seen alive.

(viii) At around 9.15 pm, the Appellant went to the house of the
neighbour PW-3 informing her of the fact that the deceased had
not returned from her walk.

(ix) Around the same time the Appellant also called the daughter of
the deceased and her husband (PW-14) in the USA informing
them of the same fact.

(x) PW-3 called the police and they arrived there soon thereafter.

96. What also stands clearly established from the evidence is that the
deceased died a homicidal death but not due to the burn injuries. The
evidence of PW-24 is categorical that of all the six injuries noticed by him,
the injury at Sl.no.6 was suggestive of “ligature strangulation post death”
and that injuries 5 and 6 were post-mortem in nature. Injuries 1 to 3 (the
injuries on the neck and lip) were sufficient to cause death in the ordinary
course of nature, collectively.

Crl.A.694/2017 Page 43 of 83

Circumstance of last seen

97. Reconstructing the events of the evening of 7th July 2014, one question
that arises is whether there is unimpeachable evidence to show, as
concluded by the trial Court, that it is the Appellant who was last seen with
the deceased? In other words does the evidence show that there was
“exclusive presence” of the accused at the place of occurrence in the
building between 8 pm to 10 pm when the death took place?

98. If one were to carefully reconstruct the sequence of events on the
evening of 7th July 2014 and in particular, with reference to the place where
the dead body was found, it is not in dispute that the body was found in the
flat on the first floor of the building. What emerges from the evidence is
that the deceased was not otherwise residing on first floor flat. She was
residing on the ground floor flat. The key to the first floor flat was available
with the owner of that flat i.e. the daughter of the deceased, the wife of PW-

2. Although the prosecution has repeatedly stressed that there was a
duplicate key of the flat available with the deceased, the police failed to
investigate where this duplicate key was. Nothing was said by the
Appellant about this duplicate key of the flat being available with the
deceased or with him in the two disclosure statements made by him i.e.
Ex.2/K and Ex.21/E. There were no finger prints or even chance prints on
the door lock or anything to do with the door of the flat on the first floor.
Why this was not examined is not known but the Court considers this to be
a serious lapse in the investigation.

99. The evidence also shows that the wife of PW-2 opened the door of that

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flat with the key that she had brought along with her. There was no forced
entry into the room at all.

100. The last person to enter the flat earlier to the deceased was PW-2, who
had engaged a carpenter to carry out some work there. That carpenter
worked in the flat on the first floor till about 4.15 pm. PW-2 paid him,
locked the door of the flat, left for the Parliament House library and
thereafter returned home at about 7.30 pm. The carpenter was not examined
as a PW.

101. With the dead body of the deceased having been found inside the flat,
in order to get to the first step in the chain of circumstances, the prosecution
had to show that not only had the Appellant entered the flat earlier but most
importantly that the deceased had also entered the flat along with the
Appellant. Here the narrative of the prosecution is that by giving some
excuse (which is not clear), the Appellant took the deceased to the first
floor flat after she returned from her walk. There is absolutely no evidence
of this, not even in the testimony of the security guard (PW-28). The
prosecution is, therefore, unable to explain how the deceased reached the
locked flat of the first floor without the flat actually being opened by
anyone.

102. The Court would like to stress on this point because it has not emerged
even in the disclosure statements of the Appellant that he took the duplicate
key of the flat when it was purportedly returned by a domestic help engaged
by the deceased to clean the flat. This has emerged only in the evidence of

Crl.A.694/2017 Page 45 of 83
PW-2 but the domestic help has not been examined. PW-2 himself stated
“no key were seized by the police in my presence nor any search was made
by the police.” He simply stated that the deceased “used to have a duplicate
key which was given to her by the wife of PW-2”, of which there is no
evidence. Significantly, the wife of PW-2 who used her own key to open
the flat and to find the deceased in a burnt condition was not examined as a
prosecution witness.

103. The Court repeatedly asked counsel for the prosecution if there is any
explanation as to how the Appellant entered the first floor flat and more
importantly how he would have got the deceased into it. Without any proof
that the deceased had a duplicate, without locating the duplicate key and
without any disclosure by the Appellant that he used the duplicate key and
then threw it away, this part of the case remains unproved by the
prosecution.

Discovery of a ‘mental fact’?

104. The case of the prosecution is that the Appellant who was in the
servant‟s quarter somehow took the deceased to the first floor flat and once
the deceased and the Appellant were inside the flat, he forcibly committed
rape upon her. In this context, it requires to be noticed that a new argument
was developed before this Court by Mr. Mahajan. According to him the
disclosure made by the Appellant while in custody to the police was that he
had „sharirik sambandh‟ (physical sexual intercourse) with the deceased
can be construed as a statement leading to the discovery of „mental fact‟
which was not known to the police earlier and came to their knowledge for

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the first time when such disclosure was made on 8 th July 2014. The precise
formulation of this point by Mr. Mahajan, as repeated by him several times
in Court, and as set out in the written submissions reads as under:

“This knowledge and mental awareness of the accused that deceased
was subjected to „sharirik sambandh‟ or physical relations/sexual
contact becomes admissible u/s 27 of Indian Evidence Act, as it leads
to a “fact discovered‟ in view of the case law referred to hereinabove.
As laid down in the cited cases, fact referred to in section 27 includes
a mental fact as defined in section 3 IEA.”

105. In support of the proposition that this is a mental fact which was
discovered by the police, he relies on the decisions in Pulukuri Kotaya v.
AIR 1947 PC 67; Mohd. Inayatulla v. State of Maharashtra (1976) 1 SCC
828, State of NCT of Delhi v. Navjot Sandhu (2005) 11 SCC 600, State of
Maharashtra v. Damu (2000) 6 SCC 269, Pandurang Kalu Patel v. State
of Maharashtra (2002) 2 SCC 490, Mehboob Ali v. State of Rajasthan
(2016) 14 SCC 640 and recently Charandas Swami v. State of Gujarat
(2017) 7 SCC 177. In para 3.9.1 of the written submissions, it is set out in
bold and underlined as under:

“The deceased was subjected to “sharirik sambandh” was a „fact
discovered‟ pursuant to the information given by accused in his
disclosure statement made on 8.7.2014. How a person not involved
in the offence would be privy to such information, unless he had
exclusive knowledge and mental awareness of the said fact.”

106. It is a settled position in law that statements that are self incriminating
and made by an accused while in custody are inadmissible in evidence
being hit by Section 25 and Section 26 of the Indian Evidence Act, 1872
(IEA). Any statement made by an accused in police custody which relates
to his culpability in the commission of crime is obviously self-incriminating

Crl.A.694/2017 Page 47 of 83
and therefore inadmissible. Section 27 only permits so much of the fact that
is discovered in consequence of information received from a person of an
offence, while in custody of a police officer “as relates distinctly to the facts
thereby discovered.”

107. In the present case, at the time when the so called disclosure was made
by the Appellant, he was already in police custody. He was arrested at 7.30
pm on 8th July 2014. It is only thereafter that his disclosure statement was
recorded. The question is whether the portion of the disclosure statement
where the Appellant has incriminated himself about having had physical
sexual intercourse with the deceased can actually be read as an admissible
portion of his statement under Section 27 of the IEA. It must be understood
that the charge against the Appellant is for committing the offence of rape
punishable under Section 376 IPC. Relevant to that charge, the above
statement purportedly made by the Appellant as part of his disclosure has
been sought to be shown as admissible under Section 27 of the IEA by re-
categorising it as a discovery by the prosecution of a „mental fact‟, of which
the Appellant had „exclusive knowledge‟. It will be recalled that the
Appellant has denied making any such disclosure either to PW-2 or to the
police.

108. At this juncture it must be pointed out that even the trial Court has not
based its conclusions as to the commission of rape by the Appellant on such
discovery of „mental fact‟ or held it to be admissible under Section 27 of
IEA and rightly so because no such arguments were advanced before the
trial Court. It is another matter that neither the medical nor forensic

Crl.A.694/2017 Page 48 of 83
evidence has in fact substantiated this so-called disclosure by the Appellant,
that is, of having had actual physical sexual intercourse with the deceased.

109. The Court fails to understand how this portion of the Appellant‟s
disclosure could at all be relied upon as it is clearly inadmissible in
evidence. This so-called disclosure by the Appellant of the commission of
crime is clearly hit by Sections 25 and 26 IEA and ought not at all be
referred to by either the trial Court or this Court. However, in order to deal
with the argument of Mr. Mahajan, even if the Court were to peruse the
disclosure, it becomes apparent that Mr Mahajan is selectively reading the
so-called disclosure. It talks about the Appellant having physical
intercourse with the deceased and also the fact that in that process, he
ejaculated on the bed sheet itself. It will be recalled that the forensic reports
are clear that no semen was found on the bed sheet. No semen or even
DNA of the Appellant could be found in the several bodily swabs taken
from the deceased. In fact even the trial Court appears to have overlooked
these crucial aspects.

110. The trial Court has referred to injury No.4 of the post-mortem and the
fact that since there was a prolapse of the posterior vaginal wall, injury
No.4 was suggestive of “forcible sexual penetration”. It was then pointed
out that PW-24 had noted that that injury could be “due to penetration or
penetrative attempt.” The trial Court has overlooked, as has Mr. Mahajan,
the full answer given by PW-24 in his cross-examination which reads as
under:

“The injuries which have been mentioned in the post mortem report
could be due to penetration or penetrative attempt. The injuries can

Crl.A.694/2017 Page 49 of 83
also be possible if a blunt object is inflicted forcefully. Possibility of
injuries on the person of the assailant can be there if the blunt object
is inflicted force fully.”

111. The above question became important because of the FSL report
which ruled out the presence of any human semen on any of the exhibits
which included not only the vaginal and anal swabs of the victim but even
her clothes, the clothes of the Appellant and the bed sheets. DNA profile
was generated from exhibits D-1 (bed sheet), F (peri-anal swab), G (high
vaginal swab), H (low vaginal swab) and I (vaginal mop) but these very
exhibits “did not yield male fraction DNA for analysis.” Likewise, none of
the other exhibits which included the clothes of the Appellant and the
clothes of the deceased yielded any DNA. None of the other exhibits i.e.
burnt white underwear of the deceased (D2), her green coloured salwar
(D3), her anal swab (E), nail clippings of the right side of the deceased (J1),
nail clippings of the left side of the deceased (J2), the Appellant‟s
underwear (L), his pubic hair (M), his penile swab (N), his control swab
(O) and his clothes i.e. his pants (R1), his half sleeved T-shirt (R2) and his
underwear (R3) could yield DNA analysis. Incidentally, there is no semen
stain on any of the articles. This is extremely significant as a piece of
evidence as the presence of either the DNA of the Appellant or a semen
stain on any of these articles would have amounted to clinching evidence of
the presence of the Appellant in the room and of his having committed
penetrative sexual assault on the deceased. That would also have been
consistent with his so called disclosure statement, which is not the case at
all.

Crl.A.694/2017 Page 50 of 83

112. The doctor‟s reply that the injury to the vaginal area was possible if a
blunt object was inflicted forcefully was not further investigated by the
prosecution at all. There was no such blunt object found anywhere near the
body which contained the DNA of the deceased. It must be recalled that the
accused was present at the spot throughout whilst the police was there. At
no point in time did he leave the spot to go anywhere after PW-2 and his
wife arrived there. His remaining there throughout is not the natural
conduct of a person accused of an offence and that too of this nature.

113. This entire aspect of the medical and forensic evidence not supporting
the case of the prosecution about the involvement of the Appellant in either
having physical sexual intercourse or sexually assaulting the deceased with
any object has sought to be brushed aside by the trial Court in the following
lines:

“It is true that the exhibits of the deceased and her clothes on DNA
analysis negate the presence of the semen of the assailant in the
vaginal slides of the deceased but it is not out of context to mention
that it is not necessary that every penetration would always result into
discharge or emission of semen. Simple penetration would amount to
rape as defined u/s 375 IPC. The injuries reported in the post mortem
report clearly suggest that the deceased was first raped and then
strangulated to death.”

114. There is no evidence to support the above conclusion of the trial Court.
There is no evidence to suggest that there was any ‘simple penetration’ of
the deceased by the Appellant either by himself or any object. The injuries
in the post-mortem report suggest injuries to vaginal area but not to the fact
that the deceased was in fact „raped‟ by the Appellant. PW-2 in his
deposition stated that the Appellant purportedly told them that he had

Crl.A.694/2017 Page 51 of 83
committed rape and in fact used the English word „rape‟ and that PW-2 and
his wife were shocked at his usage of the same. The Appellant of course
denied the assertion of PW-2 as to the language used by him by saying that
this was a complete concoction by PW-2. In fact, the evidence of PW-2,
which will be discussed in detail shortly hereinafter, shows that this was a
major improvement that PW-2 made for the first time in Court six months
after his examination in chief where he made no mention of it. Since PW-2
made no such statement to the police, there was no mention of it in the
charge sheet either. Further, if at all this was to be treated as some kind of
an extra-judicial confession, the settled legal position is that it had to be
corroborated by other evidence which in a case like this would be the
medical and forensic evidence, neither of which connected the Appellant to
the crime.

115. It must also be noticed here that the Appellant was medically
examined. There was no injury mark found around his genitals. If he did in
fact ejaculate on the bed sheet, as purportedly disclosed by him (Ex.PW-
2/K), the bed sheet at least should have had a semen stain or the DNA of
the Appellant, neither of which has been established in the report of the
FSL.

116. It is in the above background that one has to further examine the
submission of Mr. Mahajan regarding Section 27 of the IEA. Before
beginning to discuss the case law cited by Mr. Mahajan, the Court would
like to note that as far as the trial Court is concerned, the application of
Section 27 IEA has been dealt with very differently. It has been used only

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in the context of the Appellant having got recovered the knife, the kerosene
oil bottle and the match box (para 66 of the impugned judgment). It was not
in connection with the discovery of a mental fact, which was not known to
the investigating agency prior thereto, as is sought to be asserted by Mr.
Mahajan.

117. The other aspect that the Court would like to advert to here is that the
injuries suffered by the deceased around her vagina were noticed by PW-24
when he undertook the post-mortem on 10th July 2014 at 12 noon. This fact
that she suffered a lacerated wound at the vaginal orifice was not something
that would not have been discovered but for the disclosure made by the
Appellant. If this disclosure which is self-incriminating is itself not
admissible in evidence, then the question about the Appellant not having
such information unless he was himself involved in the offence simply does
not arise. This so-called disclosure made by the Appellant while in police
custody which is self-incriminating, is legally impermissible to be admitted
as evidence and it cannot be made admissible by making it appear as the
discovery of a „mental fact‟.

118. None of the decisions cited by Mr. Mahajan in fact support such a
proposition dealing with the earlier preposition in Pulukuri Kotayya
(supra). In that case, the portion of the disclosure made by the accused
regarding his culpability was inadmissible. Only the information supplied
by him that the knife used in the commission of the offence was concealed
in the roof of his house, which fact could not otherwise have been
discovered by the police, was held to be admissible. In the present case, the

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fact that the deceased was possibly assaulted in her vaginal area was a fact
that would certainly have been and in fact was, discovered at the time of the
post-mortem. This was not a fact exclusively within the knowledge of the
Appellant. He was not in control or possession of the dead body of the
deceased once it was discovered.

119. Again, in Mohd. Inaytulla (supra), while it was held that the fact
discovered was not restricted to physical or material fact which can be
perceived by the senses but also included mental fact, the circumstances
were entirely different. There, three drums containing chemicals were
carried away from the premises of the Bombay Trust in a car. A case of
theft was registered. The gate keeper is said to have noted the registration
number of the car, on the basis of which the accused was arrested. He is
alleged to have confessed that “I will tell the place of deposit of the three
chemical drums which I took out from the Haji Bunder on 1st August.”
Applying Section 27, the threefold fact discovered was (a) the stolen
chemical drums, (b) the place of recovery, and (c) the Appellant‟s
knowledge of such deposit. Splitting the statement as required under
Section 27, only the first part of the statement i.e. “I will tell the place of
deposit of the three chemical drums” was held to be the immediate and
direct cause of the fact discovered and only that portion was held
admissible under Section 27. The rest of the statement, namely, “which I
took out from the Haji Bunder on 1st August”, constituted only the past
history of the drums or their theft by the accused; it was not the distinct and
proximate cause of the discovery and had to be ruled out of evidence
altogether.

Crl.A.694/2017 Page 54 of 83

120. Applying the above principle to the instant case, the discovery of the
deceased having been sexually assaulted was not made pursuant to the
disclosure by the Appellant. It was a fact discovered during the post-
mortem of the deceased which in any event would have revealed that fact
irrespective of whether the Appellant made such disclosure or not. It is not
even the case of the prosecution that the doctors were specifically told that
the Appellant had made this disclosure and, therefore, they should carry out
tests to find out whether the deceased was sexually assaulted and that only
due to this disclosure; the lacerated wound around the vagina of the
deceased was discovered. Therefore, this whole application of Section 27
IEA in this context is wholly misconceived. It is seeking to make
admissible what is plainly inadmissible as evidence. The decision in Mohd.
Inayatulla is, therefore, of absolutely no assistance to the case of the
prosecution.

121. The Supreme Court in Mohd. Inayatulla explained what it meant by
“distinctly” because only so much of the information as relates “distinctly
to the fact thereby discovered” is admissible. This was interpreted as
meaning “directly, indubitably, strictly, unmistakably.” The information
referred to must be the “direct and immediate cause of the discovery”. In
the present case, the so-called discovery fails these tests.

122. Then we have the decision of the Supreme Court in State of
Maharashtra v. Damu (supra). The confession there led to the discovery of
a fact concerning “the place from which the object was produced, the
knowledge of the accused as to it.” There the disclosure led to the recovery

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of the dead body from the canal. It was clearly noticed that recovery was
“pursuant to and subsequent to obtaining the information” and had that
information not been available “there would have not been any recovery of
any fact at all.” The Court, therefore, fails to appreciate how the said
decision could apply to the facts of the present case.

123. Turning next to the decision in Mehboob Ali v. State of Rajasthan
(supra), it was observed in that case “for application of Section 27 of
Evidence Act, admissible portion of confessional statement has to be found
as to a fact which were the immediate cause of the discovery, only that
would be part of legal evidence and not the rest. In a statement if something
new is discovered or recovered from the accused which was not in the
knowledge of the police before disclosure statement of the accused is
recorded, is admissible in the evidence.” There, on the disclosure of the
Appellant, the co-accused was arrested. The fact of the co-accused dealing
in forged currency notes was not in the knowledge of the police. Statement
of both accused led to the discovery of the fact and arrest of the co-accused
not previously known to the police. It was held that the information
furnished by the accused persons was admissible as it led to the
identification and arrest of that co-accused and from his possession fake
currency notes were recovered. Again, the Court fails to appreciate how this
decision can be of any assistance to the prosecution.

124. Then we have the decision in Pandurang Kalu Patel v. State of
Maharashtra (supra) where the above well known principles were
reiterated. It was held that information regarding concealing of the article of

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the crime does not lead to the discovery of the article but to the fact that the
article was concealed at the indicated place to the knowledge of the
accused. This was only a further explanation of the ratio in Pulukuri
Kotaya (supra). In the present case, it was not the disclosure by the
Appellant of the commission of rape which distinctly led to the discovery
of the fact of the deceased being raped. In fact, the discovery was not of
that fact but the fact that there was forcible sexual assault on the deceased
which in any event would have been discovered as a result of the post-
mortem by PW-24. Therefore, this did not distinctly relate to the discovery
of that fact.

125. In Charandas Swami v. State of Gujarat (supra), the disclosure made
by accused was about the location where the dead body of the deceased was
dumped by him which was within his exclusive personal knowledge. Only
that portion of his disclosure regarding the place where the dead body was
dumped, and not that he had dumped it, was held to be admissible. This was
because it was only the Appellant who had exclusive knowledge about the
place of commission of the crime and about the location of the body and no
such discovery or recovery of dead body would have been made but for
such disclosure. Subsequently, the medical examination confirmed that the
dead body recovered was that of the deceased. The facts in the present case
are entirely different. The Court is, therefore, unable to agree with Mr.
Mahajan that in the present case the disclosure made by the Appellant about
his having had physical sexual intercourse with the deceased led to the
discovery of the „mental fact‟ pertaining to the same and was, therefore,
admissible in evidence.

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126. Mr. Mahajan in his written submissions contends that the deceased
being subjected to „sharirik sambandh‟ was confirmed by the CFSL report,
which mentioned that blood was detected on Exhibits D-1, E, F, G, H and I
which were the bed sheet, anal swab of the deceased, pre anal swab of the
deceased, the high vaginal swab, low vaginal swab and vaginal mop of the
deceased respectively. He then shifts his stand by stating “finding of blood
in vaginal and anal swabs of an 81 year old lady corroborated the post-
mortem finding regarding sexual contact with the deceased.”

127. When the Appellant purportedly made a disclosure about „sharirik
sambandh‟, he was supposed to be talking of physical sexual intercourse
and not about using any blunt object for forcible sexual penetration. In the
absence of any semen in any of the above samples, the question of physical
sexual penetration by the Appellant with the deceased was simply ruled out.
Further, the Appellant is supposed to have disclosed about having
ejaculated on the bed sheet as a continuation of his physical sexual
intercourse with the deceased. That was also completely ruled out by the
FSL report. It is, therefore, not understood how the mere finding of blood
on the above exhibits, which again was only the blood of the deceased
herself, can corroborate any act of the Appellant as regards physical sexual
penetration of the deceased.

128. What should not be forgotten is that it was incumbent upon the
prosecution to connect the Appellant with the crime and not simply prove
that a crime was committed. In other words, while the medical evidence and
the forensic evidence might show that a crime was committed with the

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deceased, it is not enough to bring the Appellant into the picture and hold
him guilty of the same. It had to be conclusively shown that it was the
Appellant and the Appellant alone who committed the crime. The medical
and forensic evidence fails on this test.

129. In the written submissions of the complainant, it is stated that the
presence of blood on the above exhibits “clearly shows that as a result of
rape the blood had oozed out of the vagina of the victim”. This is not a
matter for conjecture or surmise. This is a matter for expert evidence. What
PW-24 says is that the injuries were possible by using a blunt force object
and not as a result of any physical rape of the victim. The so-called
admission by the accused in his Section 313 statement that the injury at
Sl.no.4 suggests “forcible penetration” is neither here nor there. The
observation by the trial Court that “it is not necessary that every penetration
would always result in discharge or emission of semen” overlooks the so-
called part of the disclosure made by the Appellant where he apparently
stated that after having forcible sexual intercourse with the deceased, he in
fact ejaculated on the bed sheet. The complainant seeks to explain this away
by saying that since the bed sheet was found burnt “it is quite possible that
traces of DNA or semen were burnt out together with the bed sheet”. This is
again a surmise and conjecture but does not lead to linking the Appellant
with the crime. None of the above evidence conclusively links the
Appellant with the crime and that is a point not addressed by the
complainant or Mr. Mahajan in their respective written submissions.

130. According to Mr. Mahajan, because the Appellant ejaculated on the

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bed itself, it explained why no semen could be detected on the clothes of
the deceased. This is again a matter of conjecture. The smegma of the
Appellant was also collected and there was no DNA of the victim on that
smegma. The clothes of the Appellant or even the underwear of the
deceased did not indicate any presence of semen. There is nothing in the
narration of the prosecution about the Appellant, after allegedly having
committed the crime, of going and washing himself or having had a bath to
remove any traces of the commission by him of the crime. It must be
remembered that he was present at the spot throughout and after his arrest
was taken away for medical examination within 24 hours. Consequently,
the Court is unable to appreciate the submission that because the bed sheet
was partially burnt, it could be a reason for not finding semen on the bed
sheet. The submission of Mr Mahajan that “once sexual contact with the
deceased was conclusively established through post-mortem and CFSL
report” is not based on the evidence on record. Neither the CFSL report nor
the post-mortem conclusively establishes that it was the Appellant who had
any physical sexual contact with the deceased.

Circumstance of burning of dead body

131. Another circumstance which is sought to be proved against the
Appellant is his burning the body by using the kerosene oil kept in his room
which he allegedly got recovered pursuant to a disclosure statement made
by him. The witnesses to the above recovery were PW-2 and his wife (who
was not examined). PW-2 for reasons to be disclosed hereafter is neither a
truthful nor a reliable witness. He seems to be interested in the outcome of
the case. Many of his statements have not been corroborated either by the

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forensic or the medical evidence and the other evidence on record.

132. While it is true that the report of the Fire Department rules out the
possibility of the fire having been caused due to a short circuit and that the
assailant did attempt to burn the body with kerosene, the Court is not
convinced that the discovery of these objects made from the room of the
Appellant pursuant to his disclosure was conclusively proved, particularly
since there were no chance prints or finger prints on the plastic bottle of
kerosene which were looked for by the investigating agency. There was no
burnt match stick found. A plastic bottle of kerosene and a match box are
very common objects. Again, the knife which was purportedly used to slash
the mattress at various points, when tested by the FSL, did not show any
traces which suggested that it was the same knife that could have been used
to cut the mattress or that those slashes could have been caused by it. A
knife again is a very common object used in every kitchen. With these
common objects being recovered from the room of the accused while he
was in custody of the police, the possibility of these objects being planted
just to make it appear that it was the accused who used the kerosene to burn
the dead body should not be easily disregarded, particularly because the
circumstances need to form a complete chain and if the earlier links in the
chain have not been conclusively proved, intermediate links being proved
would not advance the case of the prosecution.

133. Without the prosecution conclusively proving that it was only the
Appellant who was exclusively present in the building and that it was him
alone who was present in the room on the first floor with the deceased at

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the relevant time, this discovery of the plastic bottle with some kerosene
and a match box from the room of the Appellant is really not convincing as
a clinching circumstance at all.

134. It is from this circumstance that the other circumstance about the
Appellant trying to destroy the evidence and, therefore, the post crime
conduct pointing further to his guilt, is sought to be drawn.

Evidence of PW-28

135. On the aspect of the Appellant being the person exclusively present
with the deceased at the relevant time, the evidence of PW-28, projected by
PW-2 as the same security guard he met on the night of the incident,
becomes very important for the prosecution. It is important at this stage,
therefore, to discuss in detail the evidence of PW-28.

136. As already noticed, PW-28 is supposed to be a security guard who was
apparently questioned by the police as was seen from the noting in the case
diary. However, PW-26, the IO, does not speak about making any enquiry
from a security guard. PW-28 himself states that no questions were ever
asked to him by the police. This is not, therefore, corroborated by the entry
made in the case diary. The trial Court appears to have been carried away
by the case diary entry and referred to Section 172 (2) Cr PC to hold that it
could refer to the case diary to aid it in the trial. Where no statement of the
witness is recorded under Section 161 Cr PC, no such fact is mentioned in
the charge-sheet, and it is not relied upon by the prosecution in support of
its charges against the accused, and it is not tendered with the charge-sheet

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as a relied upon document, the Court finds it difficult to agree with the trial
court that by merely referring to the case diary, a trial Court can use an
entry therein as evidence against an accused in a criminal trial dealing with
serious offences.

137. The circumstances under which the application of PW-2 (and not even
the prosecution) under Section 311 Cr PC was made, after the arguments
had concluded and order was reserved, makes it highly suspicious. It is to
be noted that the Appellant certainly did not confirm that he was the same
security guard. His subsequent statements under Section 313 Cr PC make it
apparent that the security guard at the building was not the security guard
who was examined in Court. The trial Court has unfortunately read the
evidence of the Appellant as showing him to be inconsistent in his replies
and therefore, shifting stands which led the trial court to conclude that his
conduct was strange.

138. What is evident though is the considerable time gap in the examination
of PW-2 being used by PW-2 to bring up a new element into the case of
there being a security guard at the building who was also present there
throughout. It is recalled that PW-2 himself did not mention about having
talked to any security guard in his examination-in-chief. It was only after
the long gap of over six months year when his examination in chief
resumed that PW-2 disclosed about his having had a conversation with the
security guard.

139. When PW-28 finally appeared in the trial Court, he had no documents

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to show that he had in fact been employed by an agency in Gurgaon to be a
security guard at the building. He was not identified by any of the other
occupants of the building or even the neighbours, including PW-3. There
was, therefore, nothing to show that the person who appeared as PW-28
was the same person who was the security guard of the building at the time
of the incident, who disappeared after the incident on 7th July 2014 and
apparently went untraceable, but then miraculously again reappeared in
September 2016, when he was examined in the trial Court.

140. The trial Court erred in basing its conclusions on the evidence of PW-

28. It also erred in holding that by looking to the case diary, it could take
judicial notice of the entries therein and that it “clearly proves the presence
of PW-28 on the spot on that date.” On the other hand, this raised serious
doubts on the quality of investigation. Why did the IO not mention the
presence of a security guard; why did he not record the statement of the
security guard under Section 161 Cr PC? How is it possible to test the
veracity of the version of such security guard if he is not able to show that
he was in fact employed at the building in question at the relevant time?

141. The Court finds the evidence of PW-28 to be unreliable and
untrustworthy, particularly since he speaks for the first time in the Court
without his statement ever having come on record earlier. It is only through
PW-28 that it was sought to be established that the Appellant was in and
around the place and was behaving strangely and speaking inconsistently. If
one takes PW-28 out of the picture, there is nothing to show that the
Appellant was present anywhere near or in the room on the first floor of the

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building where the deceased was ultimately found.

142. The Court is, therefore, not convinced that PW-28 can be relied upon
to return the finding that it was the Appellant who was exclusively in the
vicinity of the place where the dead body was found and that there was no
one else who had entered the building between 6 and 8 pm when the
occurrence allegedly happened.

143. Incidentally, the post-mortem report does not confirm that this was the
time period during which the incident occurred; it in fact contra indicates it
as the „time since death‟ in the post mortem report is noted as „about 2-3
days‟.

144. The conduct of the accused also contra indicates the conclusions
drawn by the trial Court about his guilt. The Appellant would not have
taken the trouble to call the neighbour (PW-3) and also to call even the
daughter of the deceased in the US who had in fact employed him and
inform them about the deceased having gone missing. He would not have
remained present at the spot throughout, in the vicinity of PW-2 and his
wife. This is certainly not the conduct of a person who has committed such
a serious crime. It is strange that despite noticing these facts, the trial Court
used it against the Appellant to say that since this conduct was unusual, he
must be the person who is guilty.

145. Therefore, in the chain of circumstances, what according to this Court
the prosecution has failed to prove is as under:

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(i) That it was the Appellant who was exclusively found in and
around the place where the dead body was found or even at the
time of occurrence.

(ii) That it was the Appellant who took the deceased to the first
floor and once the deceased led herself into the flat using the
duplicate key.

(iii) That it was he who committed forcible rape upon her or
penetrated her forcibly with an object.

(iv) That after committing such rape he burnt the body by going
down to his room, bringing some kerosene and then pouring
the kerosene on the deceased and setting her on fire and then
coming out of the room.

(v) That the deceased was in fact subjected to physical sexual
intercourse by the Appellant.

146. In this context, it must be noticed that even according to the trial
Court, the recovery of the clothes of the deceased from the dustbin at „S‟
block at his instance was not believable. Yet the trial Court brushed this
aside as not being a very serious problem. The trial Court notes in this
regard as under:

“The accused when interrogated on 08.07.2014 did not disclose
that he had thrown the clothes in the dustbin of the park. He
later disclosed about throwing of clothes in the park. While
effecting the recovery, no witness from the park was joined. It
is unbelievable that the dustbin of the park was not cleaned for
three days. In these circumstances, the recovery of clothes from
the park becomes suspect and cannot be believed. Further, the
clothes of the accused were sent to CFSL but nothing

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incriminating was found from the clothes to inculpate the
accused.”

147. And yet the trial Court concludes that “even then, this itself does not
proof fatal to the case of the prosecution”, since according to the trial Court,
“the testimonies of PW2, PW28, PW21 and PW26, medical and CFSL
reports prove the exclusive presence of the accused at the scene of crime.”
Having discussed in detail the evidence of PWs 21, 28 and 26 and the
medical and CFSL reports, the Court is unable to come to such conclusion.

Evidence of PW-2

148. That only leaves the discussion of the evidence of PW-2 himself. He
was the son-in-law of the deceased and his conduct requires to be
commented upon. The Court has already referred to the fact that in his
statement under Section 161 Cr PC, he does not seem to have had
suspicions against the Appellant. In his examination-in-chief, on the first
date i.e. 10th November 2014, he made no mention of having talked to any
security guard.

149. After his statement was recorded by the police and after the crime
team, CFSL experts and the fire brigade reached the spot and carried out
their investigation, PW-2 stated that he had remained present at the
premises throughout the night. He also states “accused also remained
present there.” He further states as under:

“We had also supplied the information qua other domestic
helps who also used to do some work in the premises in
question. The police also interrogated the accused, present in
the court today, and arrested him vide arrest memo Ex. PW

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2/H bearing my signature at point A.”

150. There was no mention on this date of a security guard or of PW-2
having talked to any security guard at all. As already noticed hereinbefore
after this examination-in-chief on 10th November 2014, his next
examination-in-chief continued more than six months later on 7 th May
2015. Now for the first time he begins his examination-in-chief with the
following statement:

“When I reached the place of incident, Sh. Santosh, Security
guard hired by third floor tenants of my mother in
law/deceased, to look after the security of the building, was
found present. I asked him If he had seen my mother in law
returning to her place when he had joined duty at about 8.00 pm
as my mother in law used to return from park at about 7.30 pm,
Santosh also used to ring the bell of the first floor flat of my
mother in law at the time when he used to come to his duty and
my mother in law used to come out in her balcony and ask him
if he need anything including tea/water etc. Santosh told to me
that on that day, when he came at 8.00 pm, he had rang the bell
of first floor as usual but she did not respond, instead he saw
accused Neeraj coming down through stairs to the parking area,
where he used to sit for duty. Santosh also told me that accused
told him that „tum duty pe aaye ho, Jahan bethie ho beth jao.
Mataji uper hai, me unko bata dunga ki turn duty par aa gaye
ho’. ”

151. This is what makes this entire insertion of the security guard into the
scenario highly suspicious. This aspect only emerged in the testimony of
PW-2 after a gap of six months, no other witness deposing about the
presence of PW-28 at the spot and with the prosecution itself not choosing
to even record the statement of PW-28 under Section 161 Cr PC, the
circumstances of his ultimately being allowed to be brought on as a

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prosecution witness become extremely suspicious.

152. Another factor is that the characters referred to by PW-2 in his
deposition were not examined as prosecution witnesses. One such character
was the domestic help who according to him on the day of the incident had
used the duplicate key, after taking it from the deceased, to open the first
floor flat and clean it. There is no such domestic help who was even spoken
to by the police. This was an important link in the chain of circumstances
which should have been examined further. The other character he refers to
is one Mrs. Shanta Duggal, mother of a relative Mr. Raman Duggal, who is
supposed to have spoken to the deceased on the mobile phone on the day
prior to the incident and also on the day of the incident itself at around 7.55
pm, when the deceased had purportedly told her that she had just come
back from her evening walk and would talk after five minutes. PW-2
specifically stated “after about 1-2 hours, I also spoke to the mother of
Raman Duggal and she also confirmed the said facts to me.” No CDRs of
the deceased‟s mobile phone were collected and no Mrs. Duggal was
examined by the police. Important aspects which would have provided
essential links in the chain of circumstances were, therefore, not proved by
the prosecution.

153. It is also only on 7th May 2015 i.e. six months after his examination-in-
chief on 10th November 2014 that he adverted to a conversation he
purportedly had with the Appellant as under:

“Thereafter, when I asked the accused as to what he had done as the
deceased was of her grandmother age, then accused without any
remorse on his face told me that „rape kiya hai’. We were shocked

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how a illiterate person is using the word „Rape‟.”

154. The fact that PW-2 could omit to mention to the police or even in his
examination-in-chief six months earlier this utterance by the Appellant
makes PW-2 highly suspect as a truthful or reliable witness.

155. PW-2 is a witness related to the deceased as her son-in-law. In the
facts and circumstances of the present case, which will be discussed
hereafter, he is also an interested witness. The law concerning related
witnesses and interested witnesses is well settled. In Dalip Singh v. State of
Punjab 1954 SCR 145, the Supreme Court explained:

“A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted and
that usually means unless the witness has cause, such as
enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real
culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity,
that there is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact
of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts.”

156. In Darya Singh v. State of Punjab (1964) 3 SCR 397, it was observed
by the Supreme Court as under:

“There can be no doubt that in a murder case when evidence is
given by near relatives of the victim and the murder is alleged

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to have been committed by the enemy of the family, criminal
courts must examine the evidence of the interested witnesses,
like the relatives of the victim, very carefully. But a person
may be interested in the victim, being his relation or otherwise,
and may not necessarily be hostile to the accused. In that case,
the fact that the witness was related to the victim or was his
friend, may not necessarily introduce any infirmity in his
evidence. But where the witness is a close relation of the
victim and is shown to share the victim’s hostility to his
assailant, that naturally makes it necessary for the criminal
courts to examine the evidence given by such witness very
carefully and scrutinise all the infirmities in that evidence
before deciding to act upon it… [I]t may be relevant to
remember that though the witness is hostile to the
assailant, it is not likely that he would deliberately omit to
name the real assailant and substitute in his place the name
of the enemy of the family out of malice. The desire to
punish the victim would be so powerful in his mind that he
would unhesitatingly name the real assailant and would not
think of substituting in his place the enemy of the family
though he was not concerned with the assault. It is not
improbable that in giving evidence, such a witness may name
the real assailant and may add other persons out of malice and
enmity and that is a factor which has to be borne in mind in
appreciating the evidence of interested witnesses. On
principle, however, it is difficult to accept the plea that if a
witness is shown to be a relative of the deceased and it is
also shown that he shared the hostility of the victim
towards the assailant, his evidence can never be accepted
unless it is corroborated on material particulars.”
(emphasis supplied)

157. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, the Supreme
Court held as under:

“We are of the considered view that in cases where the court is
called upon to deal with the evidence of the interested
witnesses, the approach of the court, while appreciating the

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evidence of such witnesses must not be pedantic. The court
must be cautious in appreciating and accepting the
evidence given by the interested witnesses but the court
must not be suspicious of such evidence. The primary
endeavour of the court must be to look for consistency.”
(emphasis supplied)

158. The legal position was succinctly encapsulated in Raju v. State of
Tamil Nadu AIR 2013 SC 983 as under:

“…..we are concerned with four categories of witnesses – a
third party disinterested and unrelated witness (such as a
bystander or passer-by); a third party interested witness (such
as a trap witness); a related and therefore an interested witness
(such as the wife of the victim) having an interest in seeing
that the accused is punished; a related and therefore an
interested witness (such as the wife or brother of the victim)
having an interest in seeing the accused punished and also
having some enmity with the accused. But, more than the
categorization of a witness, the issue really is one of
appreciation of the evidence of a witness. A court should
examine the evidence of a related and interested witness
having an interest in seeing the accused punished and also
having some enmity with the accused with greater care and
caution than the evidence of a third party disinterested and
unrelated witness. This is all that is expected and
required.” (emphasis supplied)

159. Thus, the legal position which emerges from the decisions of the
Supreme Court cited above is that in evaluating the evidence of an
interested witness, the Court must scrutinise their evidence carefully so as
to ascertain whether it has a ring of truth. While their testimony is not to be
viewed with suspicion merely because of their relationship with the victim,
the Court must be satisfied that it is consistent and cogent.

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160. In the present case one has to be very careful in accepting the
testimony of PW-2 because he seems to be a witness interested in the
outcome of getting a verdict of guilt confirmed against the Appellant. It is
PW-2 who took the extra effort of waiting till the arguments concluded
before the trial Court and even the judgment was reserved, to file an
application about his having found out about the presence of PW-28. The
Court has seen the said application dated 27 th July 2016, found as part of
the trial Court record. In para 8 of that application, PW-2 says that he
happened to meet an old friend, who works in an NGO, who volunteered to
search for the said Santosh. It is not known how the watchman‟s
whereabouts could be traced, without even a photo of his being available.
PW-2 is supposed to have contacted the IO for moving an application but
the IO “showed his inability to do so.” The circumstances of this
application are highly doubtful. No attempt was made to find out if the
Santosh so produced by PW-2 was the very Santosh who was the security
guard at the building whom the Appellant spoke about.

161. For the above reasons, the Court finds PW-2 not to be a reliable or
truthful witness. The conviction of the Appellant cannot be based on the
evidence of such witness.

162. The Court also finds that the Appellant chose to examine himself as a
witness although initially he desired not to. The mere fact that in his cross-
examination, DW-1 said that no one came in building from 8 to 9 pm could
not “clearly show his exclusive presence in the premises.” DW-1 can only
speak about what is within his knowledge and not about things that were

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outside the purview of his knowledge. If he in fact was in his room in that
time period, he clearly would not know who else could have been in or out
of the building. None of what DW-1/the Appellant had stated points to his
culpability in the crime.

Motive not proved

163. Now turning to the motive for the crime. This is a case where nothing
belonging to the deceased was in fact stolen. Her house itself was not
touched. She was found in a burnt condition on the first floor of the
building in the flat gifted by her to her daughter. The trial Court seeks to
explain the motive for commission of the crime as being the sexual urge of
the Appellant and nothing else. With the medical and forensic evidence
ruling out the possibility of the Appellant having committed the physical
sexual assault on the deceased, the prosecution has failed to prove the
motive for a crime.

164. In a matter of this nature, where other circumstances have not been
proved beyond reasonable doubt, the proving of motive for the crime
becomes extremely important. In Arjun Marik v. State of Bihar 1994 Supp
(2) SCC 372, the Supreme Court explained as under:

“…mere absence of proof of motive for commission of a crime
cannot be a ground to presume the innocence of an accused if
the involvement of the accused is otherwise established. But it
has to be remembered that in incidents in which the only
evidence available is circumstantial evidence then in that event
the motive does assume importance if it is established from the
evidence on record that the accused had a strong motive and
also an opportunity to commit the crime and the established
circumstances along with the explanation of the accused, if

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any, exclude the reasonable possibility of anybody else being
the perpetrator of the crime then the chain of evidence may be
considered to show that within all human probability the crime
must have been committed by the accused.”

165. The trial Court has overlooked the above legal position and erred in
holding that not proving the motive was not fatal to the case of the
prosecution.

Section 106 IEA does not apply

166. The prosecution sought to invoke Section 106 IEA to contend that it
was incumbent on the Appellant to explain the circumstances under which
the deceased was found dead on the first floor room. This was on the basis
that it was the Appellant who was exclusively with the deceased at the time
of commission of the offence.

167. The trial Court also seems to have adopted the same approach in the
impugned judgment. For the reasons already discussed, this Court is of the
view that the prosecution has not been able to prove that it was the
Appellant alone who was exclusively with the deceased at the time of
commission of the crime. If that is not a case, the question of invoking
Section 106 of the IEA does not arise.

168. In a case of circumstantial evidence, every link in the chain of
circumstances has to be proved beyond reasonable doubt and those proved
circumstances forming a complete chain must unmistakably point to the
guilt of the accused and no one else. That high threshold is not met in the
present case. There are too many gaps in the chain of circumstances and

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only a few links like the homicidal death of the deceased and the Appellant
being her domestic help can be said to have been proved convincingly by
the prosecution. Those important links which could unmistakably and
conclusively point to the guilt of the Appellant have not been proved by the
prosecution, much less beyond all reasonable doubt.

Summary of conclusions

169. To summarise the conclusions:

(A) The following circumstances have not been disputed, even by the
Appellant as was evident from his answers under Section 313 Cr PC:

(i) The deceased, aged 81, lived alone in the ground floor of the
house at GK-2.

(ii) The Appellant was her full time servant. He had been employed
by the daughter of the deceased whose husband is PW-14, both of
whom lived in USA.

(iii) The Appellant used to live in the servant‟s quarter which was in
the parking area of the building.

(iv) The flat on the first floor of the building had been gifted by the
deceased to her other daughter who lived in Delhi whose husband
was PW-2

(v) The flat on the ground floor of the building, which had actually

Crl.A.694/2017 Page 76 of 83
been gifted to the daughter who lived in the USA, was occupied by
the deceased. The deceased herself retained the flat on the third floor,
the front portion of which was given on lease to a company and the
rear portion of which was in the possession of the deceased.

(vi) On 6th and 7th July 2014 a carpenter had been engaged by PW-2
to work in the flat on the first floor. That carpenter worked in the said
flat till around 4.15 pm on 8th July 2014. PW-2 was also present
supervising his work, and had paid the carpenter before leaving,
without meeting the deceased that evening.

(vii) The deceased left for her walk as usual at around 5.30 p.m. but
after that was not seen alive.

(viii) At around 9.15 pm, the Appellant went to the house of the
neighbour PW-3 informing her of the fact that the deceased had not
returned from her walk.

(ix) Around the same time the Appellant also called the daughter of
the deceased and her husband (PW-14) in the USA informing them
of the same fact. PW-3 called the police and they arrived there soon
thereafter.

(B) It stands clearly established from the medical evidence that the
deceased died a homicidal death but not due to the burn injuries. Injury 5
(the burns) and Injury 6 “ligature strangulation were post-mortem. Injuries

Crl.A.694/2017 Page 77 of 83
1 to 3 (to the neck) were ante mortem and collectively sufficient to cause
death in the ordinary course of nature.

(C) There is no evidence that prior to the death of the deceased, the
Appellant entered the flat earlier and the deceased also entered the flat with
him. There is no evidence that the Appellant took the duplicate key of the
flat when it was purportedly returned by a domestic help engaged by the
deceased to clean the flat. Significantly, the wife of PW-2 who used her
own key to open the flat and to find the deceased in a burnt condition was
not examined as a prosecution witness. Without any proof that the deceased
had a duplicate, without locating the duplicate key and without any
disclosure by the Appellant that he used the duplicate key and then threw it
away, this part of the case remains unproved by the prosecution.

(D) The injuries suffered by the deceased around her vagina were noticed
by PW-24 when he undertook the post-mortem on 10th July 2014 at 12
noon. This fact that she suffered a lacerated wound at the vaginal orifice
was not something that would not have been discovered but for the
disclosure made by the Appellant. If this disclosure which is self-
incriminating is itself not admissible in evidence, then the question about
the Appellant not having such information unless he was himself involved
in the offence simply does not arise. This so-called disclosure made by the
Appellant while in police custody which is self-incriminating, is legally
impermissible to be admitted as evidence and it cannot be made admissible
by making it appear as the discovery of a „mental fact‟ for the purposes of
Section 27 of the Indian Evidence Act.

Crl.A.694/2017 Page 78 of 83

(E) In the absence of any semen in any of the samples collected from the
body of the deceased or her clothes or bed sheet, the question of physical
sexual penetration by the Appellant with the deceased was ruled out. The
FSL report also ruled out the Appellant having ejaculated on the bed sheet
as a continuation of his physical sexual intercourse with the deceased. The
finding of blood on the above exhibits, which was that of the deceased
herself, cannot connect the Appellant to the crime of physical sexual
penetration of the deceased. There was also no DNA of the victim on the
smegma of the Appellant. The clothes of the Appellant or even the
underwear of the deceased did not indicate any presence of semen. Neither
the CFSL report nor the post-mortem conclusively establishes that it was
the Appellant who had any physical sexual contact with the deceased.

(F) Without the prosecution conclusively proving that it was only the
Appellant who was exclusively present in the building and that it was him
alone who was present in the room on the first floor with the deceased at
the relevant time, this discovery of the plastic bottle with some kerosene
and a match box from the room of the Appellant is not convincing as a
clinching circumstance.

(G) The evidence of PW-28, projected as the security guard, is unreliable
and untrustworthy, particularly since he speaks for the first time in the trial
Court after conclusion of arguments without his statement ever been
recorded during the investigation come on record earlier. If PW-28 is out of
the picture, there is nothing to show that the Appellant was present

Crl.A.694/2017 Page 79 of 83
anywhere near or in the room on the first floor of the building where the
deceased was ultimately found or that there was no one else who had
entered the building between 6 and 8 pm when the occurrence allegedly
happened.

(H) Therefore, in the chain of circumstances, the prosecution has failed to
prove:

(i) That it was the Appellant who was exclusively found in and
around the place where the dead body was found or even at the
time of occurrence.

(ii) That it was the Appellant who took the deceased to the first
floor and that the deceased led herself into the flat using the
duplicate key given to her by wife of PW-2.

(iii) That it was he who forcibly committed rape upon her or
penetrated her forcibly with an object.

(iv) That after committing such rape he burnt the body by bringing
some kerosene from his room downstairs and then pouring the
kerosene on the deceased and setting her on fire and then
coming out of the room.

(v) That the deceased was in fact subjected to physical sexual
intercourse by the Appellant.

(I) The conduct of the Appellant also contra indicates the conclusions
drawn by the trial Court about his guilt. His calling the neighbour (PW-3)
and the daughter of the deceased in the US and remaining present at the

Crl.A.694/2017 Page 80 of 83
spot throughout is not the conduct of a person who committing such a
serious crime.

(J) PW-2 is neither a reliable nor a truthful witness. The conviction of the
Appellant cannot be based on the evidence of such witness.

(K) With the medical and forensic evidence ruling out the possibility of the
Appellant having committed the physical sexual assault on the deceased,
the prosecution has failed to prove the motive for a crime.

(L) Since the prosecution failed to prove that it was the Appellant alone
who was exclusively with the deceased at the time of commission of the
crime, the question of invoking Section 106 of the IEA does not arise.

Conclusion

170. The crime in the present case is indeed horrific. An elderly has been
done to death in the most inhuman manner. The evidence placed on record
by the prosecution, however, has failed to prove that it is the Appellant who
is responsible for the crime. Howsoever strong a suspicion might be, it
cannot constitute proof and is insufficient to return a finding of guilt. The
case against the Appellant had to be proved beyond reasonable doubt. The
prosecution has failed to do that in the present case.

171. It is useful to recall the following observations of the Supreme Court
in Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme
Court made the following observations, when considering convictions made

Crl.A.694/2017 Page 81 of 83
on the basis of circumstantial evidence:

“Indisputably, charges can be proved on the basis of the
circumstantial evidence, when direct evidence is not available.
It is well settled that in a case based on a circumstantial
evidence, the prosecution must prove that within all human
probabilities, the act must have been done by the accused. It is,
however, necessary for the courts to remember that there is a
long gap between ‘may be true’ and ‘must be true’. Prosecution
case is required to be covered by leading cogent, believable
and credible evidence. Whereas the court must raise a
presumption that the accused is innocent and in the event two
views are possible, one indicating to his guilt of the accused
and the other to his innocence, the defence available to the
accused should be accepted, but at the same time, the court
must not reject the evidence of the prosecution, proceeding on
the basis that they are false, not trustworthy, unreliable and
made on flimsy grounds or only on the basis of surmises and
conjectures. The prosecution case, thus, must be judged in its
entirety having regard to the totality of the circumstances. The
approach of the court should be an integrated one and not
truncated or isolated. The court should use the yardstick of
probability and appreciate the intrinsic value of the evidence
brought on records and analyze and assess the same
objectively.”

172. This was reiterated more recently in Jose @ Pappachan v. The Sub-
Inspector of Police, Koyilandy (2016) 10 SCC 519 in the following words:

“53. It is a trite proposition of law, that suspicion however
grave, it cannot take the place of proof and that the prosecution
in order to succeed on a criminal charge cannot afford to lodge
its case in the realm of “may be true” but has to essentially
elevate it to the grade of “must be true”. In a criminal
prosecution, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal proof
and in a situation where a reasonable doubt is entertained in
the backdrop of the evidence available, to prevent miscarriage
of justice, benefit of doubt is to be extended to the accused.

Crl.A.694/2017 Page 82 of 83

Such a doubt essentially has to be reasonable and not
imaginary, fanciful, intangible or non-existent but as
entertainable by an impartial, prudent and analytical mind,
judged on the touch stone of reason and common sense. It is
also a primary postulation in criminal jurisprudence that if two
views are possible on the evidence available, one pointing to
the guilt of the accused and the other to his innocence, the one
favourable to the accused ought to be adopted.”

173. For the above reasons, the Appellant is acquitted of the offences under
Sections 302, 375 and 201 IPC. The impugned order of the trial Court
convicting Appellant for the aforementioned offences and the consequent
impugned order on sentence are hereby set aside. The Appellant will be
released forthwith unless required in some other case.

174. The appeal is accordingly allowed. The Appellant shall be set at
liberty forthwith, unless wanted in any other case. He will fulfil the
requirement of Section 437-A Cr PC to the satisfaction of the trial Court at
the earliest. The trial Court record be returned forthwith together with a
certified copy of this judgment.

S. MURALIDHAR, J.

VINOD GOEL J.

OCTOBER 04, 2018
rd/tr

Crl.A.694/2017 Page 83 of 83

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