Vinay Kumar vs. State

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: 3.07.2012

+ CRL.A 670 OF 2007

Vinay Kumar … Appellant

Versus

State … Respondent

Advocates who appeared in this case:

For the Petitioner : Mr.L.K.Upadhyay, Ms. Sridevi Panikkar and
Mr. Vivek Sood, Advocates.
For Respondent : Ms.Richa Kapoor, APP for the State

AND

+ CRL.A 826 OF 2007

Munish Kumar … Appellant

Versus

State … Respondent

Advocates who appeared in this case:

For the Petitioner : Mr.Vivek Sood, Mr.L.K.Upadhyay &
Ms.Sridevi, Advocates.
For Respondent : Ms.Richa Kapoor, APP for the State
CORAM:
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR. JUSTICE V.K.SHALI

ANIL KUMAR, J.
*

1. The appellants have challenged their conviction in Sessions Case
No.466 of 2006, titled as „State v. Vinay Kumar & Anr.‟, arising from the
FIR No.528 of 2002, under Sections 302/449/376/411/ Indian Penal
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Code, PS Rohini convicting the appellant Vinay Kumar under Sections
120-B, 449/120-B, 376, 302/120-B of the Indian Penal Code and
appellant Munish Kumar under sections 120-B, 449/120-B and
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302/120-B of the IPC by judgment dated 7 September, 2007 passed
by the learned Additional Sessions Judge, Delhi. The appellant Vinay
Kumar was sentenced to rigorous imprisonment for 10 years and fine of
Rs.2000/- and in default of payment of fine further rigorous
imprisonment for two months for offence under Section 120-B IPC;
rigorous imprisonment for 10 years and fine of Rs.2000/- and in default
rigorous imprisonment for two more months for offence under Section
449/120-B of IPC and imprisonment for life and fine of Rs.2000/- and
in default further rigorous imprisonment of two months for offence
under Section 376 IPC and imprisonment for life and fine of Rs.2000/-
and in default rigorous imprisonment for two months for offence under
Section 302/120-B of IPC. Appellant Munish Kumar was sentenced to
rigorous imprisonment for 10 years and fine of Rs.2000/- and in default
rigorous imprisonment for two more months for offence under Section
120-B IPC; rigorous imprisonment for 10 years and fine of Rs.2000/-
and in default rigorous imprisonment for two more months for offence
under Section 449/120-B IPC and imprisonment for life and fine of
Rs.2000/- and in default rigorous imprisonment for two months for
offence under Section 302-120-B of IPC. The Sessions Court also
ordered that all the sentences shall run concurrently and the period of
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detention during investigation and trial be set off as provided under
Section 428 of Criminal Procedure Code.


2. Both the accused have preferred separate appeals against the
judgment of the learned Trial Court, however since the facts as well as
the evidence in both the matters is the same and interconnected, the
appeals are disposed of by a common judgment.

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3. The case of the prosecution in brief is that on 19 August, 2002
Neelam Kler w/o Late Sohan Lal, who was employed in the State Bank
of Patiala, Karala Branch had come back to her house, H. No. 19,
Pocket no. F-24, Sector 3, Rohini, after work at about 5:15 p.m. and
she had found her home to be in complete disarray. Her two children,
the son named Bharat and the daughter named Sarika also resided
with her in the same house. Seeing her house in shambles, she called
out for her children, however they did not respond. When she went to
the bedroom on the first floor she found the dead bodies of both her
children lying on the double bed. Thereafter, Neelam Kler ran
downstairs and approached the halwai and told him to call the police.
She then came back to the house, cried a lot hysterically and ultimately
became unconscious.

4. As per the prosecution, the police received information regarding
a double murder at H. No. 19, Pocket no. F-24, Sector 3, Rohini vide DD
No. 23. The information was sent through Ct. Kishan to SI Ombir Singh
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who along with Ct. Krishan and Ct. Suresh reached the spot. In the
meantime the SHO and Addl. SHO Hira Lal, also reached the spot and
found that on the first floor, the dead bodies of Bharat and Sarika were
lying on the bed. The goods in the house were lying scattered and the
almirah was lying open. A television set was also found lying on the top
most stair of the first floor. Thereafter, a rukka was given to Ct Kishan
and an FIR No. 528/02 u/s 449/302 IPC was registered. The crime
team was called for and on investigation 9-10 iron rods of the iron jaal
on the top portion of the courtyard were found to be cut and bent
downwards.

5. During investigation the scene was photographed. Photographs
are Ex PW16/1 to 13. Finger prints were lifted as Ex PW18/A. A dog
squad was called and the site plan was prepared. The bodies were also
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sent for post mortem and duly examined by Dr. Komal Singh on 20
August, 2002. On the floor near the double bed, a belt with the
monogram of the Central School was lying, which was taken into
possession. From the bedroom the bed sheet of the double bed, Ex
PW2/H and an iron rod, Ex PW27/A was recovered, while from the roof,
three ropes, one aari having a wooden handle and four blades were also
taken into possession. Statement of one Narender Mehta, family friend
of the victims was recorded, who had stated that he had passed from F-
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24, main Road, Avantika at about 4:15 PM on 19 August, 2002 and he
had seen Vinay Kumar/son in law of Neelam and his servant Munish
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going out of the house hurriedly. He had known both of the appellants
very well at the time. Thereafter a notice u/s 160 of the Cr.P.C was
issued and the appellant Vinay Kumar s/o Raj Kumar was directed to
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join the investigation. He was subsequently arrested on 20 August,
2002 at about 2:00 p.m. after which his disclosure statement was
recorded. Subsequently appellant Munish Kumar was also arrested and
he too had made a disclosure statement.

6. The case of the prosecution is that based essentially on
circumstantial/evidence one chain of which is disclosure statements of
the accused persons, leading to recoveries of certain articles at the
instance of the appellants, which were the three watches, two from the
appellant Vinay and one from the appellant Munish, two sets of black
gloves, Ex. PX and Ex. PX1, and an amount of Rs. 10,000/-. Accused
had also pointed out a tent shop from where the rope was purchased, a
shop of hardware from where the four blades and the saw (aari) was
purchased and a Kabari shop from where the iron rod was purchased.
Statements of those shopkeepers were also recorded after which the
accused person led the police party to the place of incident vide memo
mark PW 3/A.

7. Thereafter, the postmortem report was collected and on perusal of
the postmortem report of the deceased Sarika, it transpired that the
Doctor had opined that sexual offence prior to the death was a
possibility. Consequently, Section 376 IPC was added to the charges.
Crl.A 670/2007 & 826/2007 Page 5 of 64


Exhibits of both the accused and Sarika were sent to CDFD, Hyderabad
for DNA testing and the remaining exhibits were sent to FSL, Malviya
Nagar. The recovered three watches were duly identified in TIP by
Neelam Kler, mother of the victims. Also four post cards allegedly
written by the accused Vinay to his mother-in-law Mrs. Neelam Kler,
PW-2 from jail admitting to his guilt were taken into possession by the
police.

8. After completing the investigation the challan was filed and the
case was committed to the court of sessions. Later on, the DNA test
report was also collected and a supplementary challan was filed. In
order to substantiate its case the prosecution had examined 29
witnesses and thereafter, the accused persons were examined under
section 313 of the Cr.P.C. The accused persons also produced two
witnesses in their defense DW-1, Raj Kumar, father of the appellant
Vinay and DW-2 Shyam Sunder Batra, a friend of appellant Vinay.

9. The Learned Trial Court considered the arguments of all the
parties concerned and carefully weighed the evidence on the record and
on the basis of the evidence of PW-3 who saw both the accused persons
running out of the house in question; the recovery of the watches
belonging to Neelam Kler which were found missing from the house-
from which two of the watches were recovered from accused Vinay
Kumar, and one watch was recovered from accused Munish, which were
duly identified by Neelam Kler in TIP as well as during trial; the recovery
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of the weapon of offence viz the belt used for strangulating one of the
victims as per the endorsement of the doctor who conducted the
postmortem; the recovery of the aari, blade of aari and rope used by the
accused persons for entry in the house after cutting the iron jaal from
the house and the DNA Test Report according to which the biological
fluid present on the clothes of the victim, Sarika matched the DNA of
the accused Vinay Kumar, the Trial Court concluded that the guilt of
the appellants was established beyond any reasonable doubt.
Appellants’ Pleas
10. The counsel for the appellant Vinay Kumar submitted that the
star witness of the prosecution is undoubtedly PW-3, Narender Mehta,
the family friend of PW-2 Neelam Kler, who had deposed that he had
seen the appellants running out of the house of PW-2. He urged to
discard the testimony of PW-3 Narender Mehta in light of the many
alleged inconsistencies evident in his testimony. The learned counsel
submitted that as per the testimony of PW-3, he claimed to have seen
the accused persons at 4:15 pm on 19th August, 2008, running out of
the house of Neelam Kler and that it is only during the evening time
that he had come to know that the children of PW-2 had been
murdered. Learned counsel further submitted that subsequent to the
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incident two statements of PW-3 were recorded i.e. one dated 19
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August, 2002 and the other dated 20 August, 2002 which were
exhibited as Ex PW3/DA & DB. However as per the learned counsel,
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PW-3 himself deposed that he did not go to the house of PW-2 on 19
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August, 2002. This fact was also corroborated by the deposition of PW-
27, who deposed that he along with the SHO, ACP, DCP had reached
the spot and that no person had met the police party at the spot
claiming himself to have been aware of the facts of the case or who
could throw light on the incident. In fact PW-27 was categorical in
deposing that PW-3 had not met him at the spot till the time he
remained on the spot up to 9:00 p.m. While on the other hand PW-22
had deposed to the contrary, stating that he had recorded the statement
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of PW-3 at 6/7 p.m. on 19 August, 2008, which according to the
learned counsel is not possible since PW-27 himself had denied having
met any person, who was aware of the facts of the case. Thus it is urged
that these discrepancies cast serious doubt about the truthfulness of
testimony of PW-3. The statement of PW-3, therefore, was not recorded
on the date of incident as alleged by the prosecution and it is merely on
account of concoction on behalf of PW-22. It is further asserted that the
witness must have been added subsequently on the directions of the IO
with the intention to falsely implicate the appellants.

11. The learned counsel also emphasized the discrepancies in the
testimony of PW-3 who during his examination stated that he had come
home at 8:00 p.m. which is when he heard about the incident from the
neighbours, after which he reached the house of Neelam, PW-2 at 8:15
p.m. During the cross examination the said witness deposed to the
contrary stating that he had heard about the incident from the persons
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gathered in front of the spot at 6:00 p.m. Thus as per the learned
counsel, these contradictions regarding the time of receiving the
information and the source of the information is material in every
aspect as it is reflective of the fact that he is not a genuine witness.

12. The learned counsel further contended that PW-3 while deposing
in Court stated that the accused persons were seen running from the
spot of occurrence. However this is material inconsistency with his two
statements recorded u/s 161 by the police i.e. Ex PW3/DA and
ExPW3/DB wherein the word “running” was not mentioned, instead
only the term “walking fast” was used. According to the learned counsel
if indeed the accused persons were behaving suspiciously, then it is
unusual conduct on the part of PW-3 to have not stopped and enquired
from them or in the very least to have at least gone to the house of PW-2
to check, if everything was alright.

13. It is further asserted that PW-3 in his examination in chief
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deposed that his statement was recorded by the police on 20 August
2008 after which he came back to his house. While subsequently in his
cross examination PW-3 mentioned the time of recording the statement
as 2:00 p.m. However he later on deposed to the contrary stating that
he had attended the funeral at 2:00 p.m. Thus the learned counsel
contended that the witness, PW-3 has contradicted himself on various
accounts which is reflective of the fact that he is not a truthful witness.
This inconsistency is also apparent from the deposition of PW-22 who
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categorically deposed that the supplementary statement of PW-3 dated
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20 August 2008 was recorded at about 10:30 p.m. In addition, the
learned counsel contended that this statement had been endorsed by
an unknown officer who was not examined and thus its genuineness
has not been established.

14. The learned counsel has further expressed doubt on the
deposition of PW-3 since as per his testimony both the accused persons
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had made their disclosure statements dated 20 August, 2008 in his
presence, however, he is neither the witness nor the signatory to these
disclosure statements Ex PW22/A and PW27/G nor does he make any
reference about the disclosure statements in Ex PW3/DA and Ex
PW3/DB. Further this fact is diametrically opposite to the deposition of
PW-22 Sahib Singh who was categorical in stating that while the
disclosure statement of accused Vinay was recorded at 5:00 p.m. on
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20 August, 2008 at the police station, no public person was present
there, other than he himself, Inspector Hira Lal and PW-27 SI Ombir
Singh. Thus if in fact PW-3 was present in the police station, his
signatures and name should have been on the disclosure statement as
well as the personal search memo of accused Vinay, Ex. PW 27/E. It
was further asserted that PW-3 in his testimony had categorically stated
that the accused persons were not taken to any place nor had they led
the police to any place in his presence. However in view of this
deposition according to the learned counsel it is glaringly unexplained
Crl.A 670/2007 & 826/2007 Page 10 of 64


why his signatures are appearing on the pointing out memo of the place
of occurrence Mark 3/A, Ex. PW 27/H and from this, the only inference
that can be drawn is that because he was a close friend of the victims‟
family, he agreed to sign any of the documents as per the desire of the
police. Thus it is alleged that in the facts and circumstances PW-3
cannot be relied upon and he is not a genuine witness and his
testimony cannot be relied on establishing the culpability of the
accused.

15. Learned counsel for the appellant further urged that since PW-3
is a solitary witness to the alleged factum of having seen the accused
persons running out from the house of PW-2 which fact has not been
corroborated by any other evidence, therefore it cannot be substantial
enough to inculpate the guilt of the accused persons. Learned counsel
contended that even if the version of PW-3 is to be taken into
consideration for the sake of argument, it is highly unlikely that the
accused persons would have run out of the victims‟ house, as it would
have attracted attention towards them and also since they were well
aware of the timings of PW-2, the mother of the victims, so they would
have known that she was to come back to the house by about 5:15 in
the evening and there was ample time for them to go out without
running.

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16. The learned counsel vehemently argued that the Trial court
grossly erred in relying upon the DNA finger printing report of the
CDFD, Hyderabad since there were many manipulations by the police
authorities in the collection and preservation of the samples/articles
from the point of seizure to the point of its submission before the
forensic analysis, which undoubtedly could have contaminated the
samples and consequently would have affected the outcome of the
report. According to the learned counsel, in the police remand
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application dated 21 August, 2002 the ground taken to remand the
appellants to police custody was for the purpose of taking the blood
samples of the accused persons‟ in order to facilitate DNA Analysis, for
which two days of police remand was granted. However during that
period no DNA samples were taken. Also as per the deposition of PW-25
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Suraj Bhan, both the accused were taken to the hospital on 21 August
2002 and accused Vinay was examined vide MLC No. 1799 while
accused Munish was examined vide MLC No.1800/21.08.02. However
the learned counsel submitted that the MLCs of both the accused were
not placed on the record with the clear intention of withholding it from
the Court. It was also alleged by the prosecution that the garments,
blood samples and MLC No. 1800 of Munish were handed over by the
doctor to PW-25 Suraj Bhan which were seized vide seizure memo Ex
PW25/A. However no explanation had been given by the prosecution
regarding what happened to the garments, and the blood samples of
accused Munish. In addition neither has the seizure memo regarding
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the garments, blood samples and the MLC No. 1799 of Vinay has been
placed on the record nor were the doctors of BSA Hospital, who
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examined accused Munish and Vinay on 21 August 2002 either cited
or examined in Court, for which no explanation has been given by the
prosecution.

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17. Thereafter, on 23 August, 2002 as per the MLC No. 1823/02,
accused Vinay Kumar was again taken to the BSA Hospital at 11:35
a.m. by Constable Kishan PW-24 while as per the MLC No. 1824/02
accused Munish was taken to BSA Hospital at 11:40 am by Constable
Pramod, PW-21, however neither of the witnesses had deposed about
the same. Also no blood samples were taken for DNA analysis at this
stage nor was the doctor who examined the appellants been cited as a
witness. Thus the purpose of taking the accused to the hospital is not
established by the prosecution.

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18. At about 2:00 pm on 23 August, 2002 the accused were
produced in court after the expiry of two days of the police remand and
they were further remanded to judicial custody. However as per the
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record on 23 August, 2002 the accused were again taken to the
hospital at 3:20 pm, without any permission from the court, since as
per the learned counsel, procedural requirement necessitated that
samples for DNA should be taken before an MM. As mentioned in the
MLC, the accused persons were brought by HC Prakash Pradhan PW-
20. The accused Munish was examined by Dr. Poonam PW-8 vide MLC
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Ex. PW 8/A and accused Vinay Kumar was examined by Dr. Raman
Bhutani vide MLC Ex PW14/A. Blood samples of both the accused were
taken. However Dr. Raman Bhutani could not been examined as he had
left the services of the hospital, because of which in his place Dr.
Kuldeep Singh was examined as PW-14 since he was conversant with
the handwriting and signatures of Dr. Raman Bhutani. However Dr.
Kuldeep Singh testified in court only on the basis of the contents of the
MLC, hence as per the learned counsel the non-examination of Dr.
Raman Bhutani has caused great prejudice to the appellant Vinay
Kumar as many clarifications regarding sampling, taking specimen
sample seal, preservation of samples, precautions taken in sampling,
role of technicians, etc could not be ascertained. Therefore it is
contended that due to non-examination of this material witness the
findings of the same cannot be relied on as against the appellant, since
its sanctity has not been proved beyond all reasonable doubt. It is
further contended that in the MLC of Vinay Kumar Ex PW 14/A the
description of the seal in which the samples were taken is not given nor
does it specify whether any specimen of the sample seal was taken by
the police. PW-14 also did not depose anything regarding the
details/description of any such seal or state the fact that the samples
were sealed. Hence, it is contended that there was a good chance that
the samples could have been tampered with. It is further submitted that
this is not disputed that there was availability of surplus biological fluid
with the police, hence as per the learned counsel it could have been
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very easily been utilized by the police with the view to manipulate the
evidence and inculpate the appellants.

19. It is also pointed out that as per the MLC No. 1823/02 Ex PW
14/A the samples of appellant Vinay Kumar were handed over to HS
Prakash Pradhan (PW-20). However PW-20 has deposed diametrically
opposite by stating that the pullandas in respect of Vinay Kumar and
Munish were separately collected by the IO. Thus in light of the
confusion regarding the collection of the samples which is imperative in
ascertaining the validity of the report, the learned counsel asserts that
the samples could have been tampered with and contaminated and the
same cannot be relied upon and consequently the CDFD report
implicating appellant Vinay cannot be relied on as well.

20. Learned counsel further contended that even though the
pulandas of the DNA samples of the appellants, were deposited in the
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office of CDFD on 26 August, 2002, however the DNA typing report
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was prepared only after a lapse of more than 1 year on 15 October,
2003. There is absolutely no evidence regarding under whose custody
the samples and garments of Sarika remained during the intervening
period. There is also absolutely no explanation given for the delayed
examination of the DNA material. As per the learned counsel even
though the vaginal swab, vaginal smear and nail clippings of Sarika the
victim was preserved and handed over to the police by the doctor during
post mortem, however the vaginal smear and the nail clipping which
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would have definitely yielded suitable material for DNA Typing was not
send to the CDFD, Hyderabad. It was further contended that PW-29
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had also deposed that the samples were received on 24 August, 2002,
which is completely false as it is a matter of record and even
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corroborated by PW-20 that the samples were received on 26 August,
2002. Therefore, it is contended that in light of these inconsistencies
the deposition of the witness PW-29 too has to be considered cautiously
and his denial to the suggestion that there could have been
contamination of the samples, since it reached after a delay of 72
hours, has to be disregarded. The analysis too admittedly was
conducted after the lapse of a year, the delay for which is unexplained
and renders allegedly a huge blow to the case of the prosecution.

21. Learned counsel further asserted that the entries in the
Malkhana register only stipulate when the items were deposited in the
malkhana, however, it does not specify as to the dates when they were
removed from the malkhana for the purposes of being sent to FSL
Malviya Nagar, or CDFD Hyderabad, etc. and they also do not mention
whether the items were returned to the malkhana or not. In any case
this is reflective of the shoddy investigation and therefore tampering
with the evidence cannot be ruled out and thus the appellants are
entitled to the benefit of the same. The learned counsel has highlighted
the fact that though 18 plastic dibbas were specified in the malkhana
register as Entry No. 2551, however only 16 of these item were re-
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deposited in the malkhana after being sent to FSL Malviya Nagar. It is
also submitted that as per PW-23 MHCM also only 16 plastic dibas
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were re-deposited on 12 April, 2005. On being specifically questioned
which of the two plastic dibbas were not deposited, he could not specify
the same. Thus the learned counsel contended that since the 18 plastic
dibas also included the clothes of Sarika as well as her undergarments
which were sent for DNA analysis, there is a possibility that the same
could have not been deposited and therefore there was every possibility
of it being tampered with.

22. Learned counsel has also submitted that the report of The
Forensic analysis has come from FSL Rohini Ex PW 28/A and not from
FSL Malviya Nagar as deposed by various witnesses. There is absolutely
no evidence or explanation as to how and under what circumstances
the samples reached FSL Rohini, whereas the entire documents and
evidence shows that the pulandas were sent to FSL Malviya Nagar. As
per the learned counsel the fact remains that the pulandas were
analyzed at FSL Rohini, hence it is contended that the entire oral
evidence of the witnesses and the documents showing FSL Malviya
Nagar are false and fabricated. This is also reflective of the lack of
sanctity in the investigation and the ploys employed to falsely implicate
the appellants. Further the learned counsel pointed out that the sample
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parcels were received by the office of FSL on 1 November, 2002.
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However they were analyzed only after a lapse of 3 years on 22 March,
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2005 while the report was prepared on 8 April, 2005. Therefore it is
contended that due to inordinate delay in examining the samples the
same cannot be relied on.

23. Learned counsel has further contended that there is a break in
the chain of custody of the biological evidence and since it is not
complete the same is not substantial enough to implicate the
appellants. As per the learned counsel the malkhana register does not
specify the items that were sent to CFSL, Malviya Nagar and CDFD,
Hyderabad, hence there is a lot of ambiguity and there is doubt
impressed upon the fact that the garments of Sarika and PM Blood
gauge were sent to FSL, Malviya Nagar and CDFD Hyderabad,
simultaneously, which is not rationally possible. Therefore, learned
counsel contended that the prosecution has not been successful in
establishing the fact that the samples could not have been tampered
with, because of which the appellants are entitled to the benefit of
doubt.


24. Learned counsel further contended that there is a strong
possibility that in light of the facts and circumstances, the present
matter could have been a case of burglary/dacoity. As per the learned
counsel the same conclusion was reached by the crime team at the time
of investigation as well. The fact that the TV was found on the staircase,
and that as per PW-24 who was present at the spot too had deposed the
fact that 9-10 iron rods of jaal were found cut and were bent
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downwards and that it gave the impression that somebody had come
from over the jaal after cutting the same and entered the first floor. He
further described the site of incident to be in complete disarray by
deposing that the goods of the almirah were lying scattered outside the
almirah and that it appeared from inspection at the spot that a dacoity
or robbery has been committed. This fact has been corroborated by PW-
27 as well.

25. Learned counsel further contended that the photographs of the
spot of incident reveal that a helmet was lying on the TV set found on
the stairs, however no investigation regarding the helmet was made,
which according to the learned counsel would have been invaluable in
apprehending the real culprits, and in proving the innocence of the
appellants. In any case even as per the case of the prosecution the
appellants had entered and left the house on foot, and no two wheeler
was seized as well. As per the counsel the Trial court grossly erred in
brushing aside the major lacunas in the investigation on the reasoning
that the helmet could have been left by some witness or police official in
a hurry. Thus the counsel contended that the prosecution has not been
successful in proving the guilt of the appellants beyond all reasonable
doubt and hence the appellants ought to be acquitted.

26. The learned counsel for the appellant has contended that the
accused persons have been gravely prejudiced since the IO, Insp. Hira
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Lal of the present case could not be examined. Learned counsel further
submitted that the reason for non-examination of the IO concerned
was, since he had expired in May, 2005. Therefore, in his place, PW-27
was recalled to prove the signatures of the IO. However the accused
persons were not given the full opportunity to cross examine the
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witness as his cross examination was deferred after lunch on 13
November, 2006 and thereafter too no opportunity was given to the
accused persons, which according to the learned counsel for the
appellant gravelly prejudiced the appellants while putting up its
defense, as the Learned trial Court disallowed certain pertinent
questions asked by the appellants to the witness PW-27 on the flimsy
ground that the witness had been called only to identify the signatures
of the IO.

27. The learned counsel has further contended that the arrest memo
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was prepared on 19 August, 2002 hence for all purposes it is clear
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that the accused persons were arrested on 19 August 2002, which is
contrary to the case of the prosecution, according to which the accused
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persons were arrested on 20 August 2002. Therefore, it is contended
that there are clear manipulations made in the arrest memo as even the
entry in the memo has been made with two different pens and while the
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date on the top is mentioned as 19 August, 2002 the date in column
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no. 6 is mentioned to be 20 August, 2002. These manipulations clearly
render the document unreliable and raise glaring questions on the
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investigation of the prosecution. The arrest of the appellant on 19
August, 2002 is also corroborated by the testimony of PW-3 and DW-1.
Thus the case of the prosecution that the accused persons were
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arrested pursuant to a notice dated 20 August, 2002 issued under
Section 160 of the Cr.P.C. are all manipulations by the concerned
officials and has been established to be false.

28. The learned counsel for the appellants has contended that the
Trial Court has grossly erred as it has based its judgments on
conjectures and surmises rather than the facts proved on record.
According to the learned counsel, the observations and conclusions of
the Learned Trial Court are absolutely unfounded and baseless and
based on surmises and conjectures.

29. It is further alleged by the learned counsel that the trial court was
confused in its conclusions while holding that the accused persons were
not sure as to who would become a prey of their act. It was reasoned by
the Trial court that if Neelam Kler had been found in the house then
she too would have become a prey of the act of the accused persons.
Therefore, the Learned Trial Court was clearly not sure if the accused
persons had come with a definite intention to kill a particular person
and what the motive was? As the house of PW-2 was a self acquired
property of Late Shri Sohan Lal, the husband of PW-2 who had died
intestate, it was inherited by PW-2 along with her three children.
Therefore, if the motive of the accused Vinay was indeed to usurp the
Crl.A 670/2007 & 826/2007 Page 21 of 64


property, then it would have been only possible by killing PW-2 as well.
Therefore the Trial court had grossly erred in accepting this as a motive
to kill the victims by the accused persons. It is further asserted that
there is no evidence as to when the accused persons had allegedly
entered into the house nor has the time of the incident been
established.

30. It is also contended that the documentation in the present matter
was belated and antedated which is the reason behind the duplications
which too was disregarded by the Trial Court. According to the learned
counsel the case diary and the chargesheet were prepared by PW-22
hurriedly in order to comply with the limitation u/s 167 Cr.P.C. If the
charge sheet had been prepared at the alleged date, time and place then
there would have been no chance of duplication.

31. The learned counsel further asserted that no finger prints from
the spot of occurrence had been lifted which is also corroborated by the
deposition of PW-27, who categorically stated the same and which is
contrary to the prosecution‟s case as well. The learned trial court had
been hugely misguided to have dismissed the statement made by the
PW-27 to have been on account of lapse of memory. However this
serious lapse is liable in itself to exculpate the guilt of the appellants
and the benefit of doubt is due to them. The learned counsel further
emphasized that the Trial Court grossly erred in explaining away the
undue latitude on behalf of the prosecution for not sending the finger
Crl.A 670/2007 & 826/2007 Page 22 of 64


and palm impressions, which were specifically requested for by the
Finger Print Expert.

32. The learned counsel further contended that PW-2 had
categorically stated that in her presence none of the articles were seized
from the room however, as per PW-27 Ombir Singh, a belt, an iron rod,
an empty sweet box, from the room and three ropes, one aari and four
blades were recovered from the roof top. Therefore the recoveries of the
same in the absence of any public persons cannot be relied upon.

33. Learned counsel further submits that all the seizure memos,
search memos etc. had been written by PW-22 Ct. Sahab Singh who
was primarily present throughout during the investigation. Almost all
the material memos were either witnessed by himself or PW-27 or SI
Ombir Singh or both. No independent public witness of the locality had
been joined as per the requirement under Section 100 of Cr.P.C.
Therefore, it is contended that the recoveries in itself are of a doubtful
nature and not substantial enough to inculpate the guilt of the
appellant.

34. The learned counsel further urged the court that the statement of
PW-2 also is not beyond reproach as it is fraught with inconsistencies.
She hasn‟t explained why the FIR was not recorded by the police on her
statement nor is there any record of the rooms being checked for the
th
missing article which was done by her on 20 August 2002 and which
Crl.A 670/2007 & 826/2007 Page 23 of 64


thereafter resulted in the finding that three of her watches were
missing.

35. Learned counsel further contended that PW-22 Const. Sahab
Singh and PW-27 SI Ombir Singh were witnesses to the alleged recovery
of the watches from the appellants. However these watches were not
produced before the court and therefore as per the learned counsel it
cannot be concluded that the recovery of the said watches was proved
against the appellants. The learned counsel further asserted that the
manner in which the TIP was conducted was a complete farce, as the
three watches were mixed up with four other watches, which would
imply a ratio of 1 is to 1 which is contrary to the settled law and
practice of conducting a TIP and all four watches were of HMT make
which was pointless since none of the watches were of the HMT make.
Instead watches of the Kawa or classic make, similar to the stolen
watches ought to have been mixed up. It was further asserted that it
wasn‟t clarified by PW-2 whether the stolen watches were in a sealed
condition. It is also submitted that in light of the fact that one of the
appellants is the son-in-law of PW-2 it would have been highly unusual
to accept that they would have stolen only three low priced watches
when he would have been fully aware of the valuable articles lying in
the house.

36. Learned counsel also submitted that the aspect of conspiracy to
carry out the alleged offence has not been established between the
Crl.A 670/2007 & 826/2007 Page 24 of 64


appellants. As per the counsel there is absolutely no evidence, direct or
circumstantial which implies the existence of conspiracy or that the
appellants were party to any such conspiracy or that any act was done
pursuant to it. Regarding the letters allegedly written by the appellant
Vinay, learned counsel contended that it cannot be taken into
consideration to prove the existence of a conspiracy or that anybody
was a party to it, since the letters were written much after the incident
when the conspiracy was not on foot. Relying on Mirza Akbar, AIR 1940
PC 176 the learned counsel contended that anything written or done
after the conspiracy is over; accomplished, abandoned, not executed or
otherwise is not relevant u/s 10 of the Indian Evidence Act.

37. The letters are in any case, of no consequence as they are not
satisfactorily proved and cannot be admitted as confession under law.
Thus they should be excluded from consideration while adjudicating the
case.
Pleas of the State
38. The learned counsel for the state contended that the prosecution
has been successful in proving the guilt of the appellants as has been
rightly concluded by the Trial Court as well. Reliance has been mainly
placed on the testimony of PW-3 Narender Mehta, who had categorically
deposed that he had seen the appellants running out of the house no.
24/19, Secor-3 Rohini which is the spot of occurrence at about 4:15
Crl.A 670/2007 & 826/2007 Page 25 of 64


p.m. which was immediately after the alleged incident as per the Post
Mortem Report.

39. The learned counsel further asserted that the mother of the
victims, PW-2 had identified the three watches in TIP which were
missing from the house after the incident and were recovered from both
the accused persons. While two of the watches were recovered from the
room of accused Vinay the other watch was recovered from accused
Munish. PW-2 Neelam Khler had also produced the letters of apology
received from appellant Vinay in which he admitted to his guilt and
while deposing about the same the appellants did not even cross
examine the said witness.

40. The learned counsel further asserted that even the motive had
been established as the appellant Vinay on account of being the son-in-
law of PW-2 carried out the crime with the sole intention of usurping
the property of PW-2.

41. Learned counsel further contended that even though PWs-12 & 5
the tent house owner and the hardware shop owner had both turned
hostile, however there deposition need not be completely effaced from
the record and can be taken into consideration to the extent that they
both proactively identified the appellants as the persons who had
purchased the rope, the blade and the saw respectively from both of
them. The Kabari shop owner, PW- 5 had also deposed regarding the
Crl.A 670/2007 & 826/2007 Page 26 of 64


fact that the appellants had purchased two iron rods two days prior to
the date of the incident, which was clearly in view of carrying out the
offence. The recovery of the rope, blade saw and the iron rods which
were used by the accused persons to cut the iron Jaal at the roof in
order to gain entry into the house is relevant in proving the guilt of the
appellants.

42. Regarding the offence of rape the learned counsel for the state
has contended that as per the DNA report the biological fluid present on
the clothes of Sarika was a source of exhibits of the appellant Vinay,
however, the same wasn‟t a source of exhibits of the accused Munish
and thus it is contended that the scientific evidence of rape before
murder by the appellant Vinay stands proved beyond all reasonable
doubt.

43. Learned counsel further asserted that hundreds of crime cases
are solved across the country with the help from the Centre for DNA
Finger Printing Diagnostics (CDFD) at Nacharam. The centre for DNA
fingerprinting and diagnostics (CDFD) is an autonomous organization
funded by the Department of Biotechnology. The society of Centre for
th
DNA Fingerprinting and Diagnostics (CDFD) was registered on 26
March, 1996 under the Andhra Pradesh (Yalangana areas) Public
Sources Registration Act, 1300 fasli (Act of 1350 F). It is the only
Government approved testing centre where DNA fingerprint solved
crimes. Initially it was under the Centre for Cellular and Molecular
Crl.A 670/2007 & 826/2007 Page 27 of 64


Biology (CCMB). The CDFD has analyzed many crimes cases through
this technique.

44. Learned counsel further submitted that the Courts from all over
the world have recognized the importance of DNA Evidence due to its
99.9% accuracy and reliability. Even in the absence of statutory
recognition, it is submitted that the DNA testing is utilized in Indian
cases. As per the learned counsel for the state such scientific evidence
as DNA is accepted even under Section 45 of the Indian Evidence Act,
1872. The witness proving the DNA report is an expert witness and like
all other witnesses he/she is examined, cross-examined and re-
examined. In support of her submissions she has relied on the case
titled as Geetha v. State of Kerala, 2005 (2) DMC 286 wherein it was
held that the report of DNA Fingerprinting issued from DNA
Fingerprinting and Diagnostic Centre, Hyderabad which is a
government undertaking for conducting DNA test can be admitted in
evidence without examination of the expert under Section 293 of Cr.P.C.

Dharam Deo Yadav v. State of UP,
45. Reliance was also placed on
(para 52) where this Court had held that STRs is highly sensitive and is
a conclusive test which produces results even in degraded samples.

46. Thus in the facts and circumstances as has been urged by the
counsel for the State, the CDFD report is conclusive in proving the
Crl.A 670/2007 & 826/2007 Page 28 of 64


guilt of the appellant and the Trial court has been right in relying upon
it.

47. Learned counsel, Ms Richa Kapoor also submitted that the
principles of law for appreciating the evidence of criminal conspiracy
under Section 120 B IPC are well settled and have been proved beyond
reasonable doubt as against the guilt of the appellant Munish.

48. The learned counsel contended that as per section 120-A of IPC,
the criminal conspiracy contemplates as follows: When two or more
persons agree to do or cause to be done (i) an illegal act or (ii) an act
which is not illegal by illegal means, such an agreement is designated
as a criminal conspiracy. Therefore the essence of the offence of
conspiracy is the commission of an act by an agreement which is illegal.
The agreement may either be express or implied or in part express and
in part implied and the offence continues to be committed so long as
the combination persists, that is until the conspiratorial agreement is
terminated by the completion of its performance or by abandonment or
frustration or whatever it may be.

49. She further contended that the offence of conspiracy requires
some kind of physical manifestation of the agreement. Also there is no
need to prove the express agreement nor is it necessary to prove the
actual words of communication. The evidence of transmission of
thoughts sharing the unlawful design may be sufficient in itself.
Crl.A 670/2007 & 826/2007 Page 29 of 64


Therefore, conspiracy is proved by circumstantial evidence, as the
conspiracy is seldom an open affair. In most cases it will be difficult to
get direct evidence of the agreement, but a conspiracy can be inferred
even from the circumstances giving rise to a conclusive or irresistible
inference of an agreement between two or more persons to commit an
offence.

50. In support of her submission she has relied on the judgment of
Noor Mohammad Yusuf Momin v. State of Maharashtra: AIR 1971
SC 885 , wherein it was held that “in most cases proof of conspiracy is
largely inferential though the inference must be founded on solid facts.
The learned counsel contended that the surrounding circumstances
and antecedents and subsequent conduct, among other factors,
constitute relevant material.” According to her Lord Bridge in R v.
Anderson: 1985 (2) All E.R. 961 had also very aptly said that the
evidence from which a jury may infer a criminal conspiracy is almost
invariably to be found in the conduct of the parties.

51. The learned counsel further urged that one who commits an overt
act with the knowledge of the conspiracy is guilty. And one who tacitly
consents to the object of a conspiracy and goes along with the other
conspirators, actually standing by while the others put the conspiracy
into effect, is also guilty though he intends to take no part in the crime.
One more principle which deserves notice is that cumulative effect of
the proved circumstances should be taken into account in determining
Crl.A 670/2007 & 826/2007 Page 30 of 64


the guilt of the accused rather than adopting an isolated approach to
each of the circumstances.

52. On the point of admissibility of the evidence i.e. whether
declaration by one conspirator made in furtherance of a conspiracy and
during its subsistence is admissible against each of the co-conspirators,
she submitted that the rule analogous to Section 10 of the Evidence Act
shall be applicable. She further relied on AIR 1965 SC 682 regarding
the proof of conspiracy and scope and applicability of Section 10 of the
Indian Evidence Act.

53. This court has heard the learned counsel for the parties in great
detail and perused the entire evidence on record as well. The star
witness of the prosecution is undoubtedly PW-3, Narender Mehta who
deposed that he had seen the appellants running away from the house
th
of PW-2 at about 4:15 pm on 19 August, 2002. PW- 3 was also known
to PW-2, Neelam Kler, mother of the victims as he resided as a tenant
on the ground floor in the same building from 1986 to 1991. He is also
a family friend of the victim‟s family. Therefore it is to be considered and
analyzed whether the testimony of PW-3 is reliable or not.

54. As per his deposition his shop and the place of incident is on the
same road and it takes about 5 minutes from his shop to reach the
place of incident on foot. PW-3 had also deposed that, at the relevant
time he was passing by the place of incident in relation to his work.
Crl.A 670/2007 & 826/2007 Page 31 of 64


Therefore, the presence of the witness PW-3 at the spot cannot be
termed to be impossible or incredulous, so as to disbelieve it. He further
stated that since he came to know about the incident in the evening he
had informed the police thereafter. As argued by the learned counsel for
the appellants, if indeed PW-3 had seen the appellants running out of
the house, he should have become suspicious and should have stopped
and enquired from them as to the reason for their presence at the spot.
This plea of the appellant is not sustainable and cannot be accepted.
These are not such circumstances which would have made PW-3
suspicious so as to stop them or enquire anything from them. Appellant
Vinay is the son in law of the Pw-2 and even if he was running, it is not
such a thing which would have alarmed the said witness. It has also
been deposed that the appellant Vinay was walking fast and not
running along with other Appellant. The said witness was a tenant and
therefore, he knew appellant Vinay. Merely because he knew the said
appellant does not mean that he should have stopped him to ask him
as to why he is walking fast or running. The plea of the appellants is
rather based on their own assumptions about how an earlier tenant
would have behaved in such circumstances.

55. The inconsistencies in the deposition of PW-3 as alleged by the
learned counsel for the appellants with regard to the time and the place
and the source of information is immaterial since it is an admitted fact
th
that the incident had taken place on 19 August, 2002 while the
Crl.A 670/2007 & 826/2007 Page 32 of 64


rd
witness was examined in the Court on 23 July, 2004 and then cross
th nd
examined on 15 April, 2005 and finally further cross examined on 2
December, 2006. With such time gap there is every likelihood of the
witness not recollecting the exact timings and instances. Human
memory is not photographic so as to retain every minute aspect and
every detail of a particular incident. With the passage of time the
memory fades and cannot be expected to be the same as in the first
instance. Therefore if the witness does not contradicts on material
particulars with his statement, then the testimony of the witness can be
relied upon. The learned counsel had also contended that PW-3 while
deposing in Court stated that the accused persons were seen running
from the spot of occurrence, however, this is materially inconsistent
with his two statements recorded u/s 161 by the police i.e. Ex PW3/DA
and ExPW3/DB wherein the word “running” is not mentioned, instead
only the term “walking fast” is used. However this alleged inconsistency
is also not substantial in itself to compel this Court to disregard the
entire evidence of PW-3. It is apparent that the witness meant that
appellants were exiting hurriedly from the premises. There are no such
glaring inconsistencies in the statements of witnesses recorded by the
police Ex PW3/DA and ExPW3/DB and the statement in recorded in the
Court which will impel this Court to reject his testimony or hold that
the deposition of Pw-3 is unreliable.

Crl.A 670/2007 & 826/2007 Page 33 of 64


56. In any case the reliance on the witness is not without
corroboration. Since as per the post mortem report, Ex PW 7/B of Dr.
Komal Singh, CMO, Safdarjung Hospital, PW-7 had deposed the time of
death to be 22 hours since the examination which was initiated at 12
th
pm on 20 August, 2002, therefore the time of death is roughly
th
estimated to be 2:00 p.m. on 19 August, 2002 and the time when PW-
3 had seen the appellants come out of the spot of incident was around
4:15 p.m. Thus the time of the alleged incident and the time as deposed
by PW-3 of having seen the appellants on the concerned premises is
proximate enough and therefore, can be taken into consideration for the
purpose of last seen evidence.

57. Head Constable Sahab Singh, PW-22 who recorded the statement
th
of Narender Mehta on the 19 August, 2002 and the supplementary
th
statement on 20 August, 2002 was also examined. He too has
supported the veracity of the two statements recorded. Learned counsel
for the appellant has further disputed the very presence of PW-3 on the
premises by relying on the testimony of PW-27, who had deposed that
no person had met the police party at the spot claiming himself to have
been aware of the facts of the case or who could throw light, on the
incident and had specifically deposed that PW-3 had not met with him
at the spot till the time he remained on the spot up to 9:00 p.m.
However the presence of Narender Mehta, PW-3 at the spot had been
confirmed by the deposition of PW-24 who categorically stated that
Crl.A 670/2007 & 826/2007 Page 34 of 64


Narender Mehta was present at the spot 20 minutes after he himself
had reached the spot. Regardless of this PW-27 merely deposed that it
was not in his knowledge whether PW-3 had met with any other police
officer at the spot on the day of the incident. Thus there is no
categorical denial of the same, and in the very same breathe he even
th
acknowledged the fact that statements of Narender Mehta dated 19
th
August, 2002 and 20 August, 2002 recorded under section 161
Cr.P.C. are in the handwriting of Ct Sahab Singh. The trial court also
observed that even as per the deposition of DW-1 & DW-2, PW-3 was
present at the place of incident. Thus the evidence of Pw-3 cannot be
disbelieved or rejected on account of the deposition of Pw-27 as had
been contended by the counsel for the appellants. The findings of the
Trial Court in this regard, therefore, cannot be faulted.

58. The learned counsel for the respondent stated that the report of
CDFD, Centre for DNA Fingerprinting and Diagnostics is admissible
under Section 293 of the Criminal Procedure Code. It is contended that
in any case the report has been duly proved as Exh.PW 29/A. The
witness was examined who had deposed cogently about the report and
who had been cross examined also at length by the accused/appellant.
The Centre for DNA Fingerprinting and Diagnostics hereinafter referred
to as CDFD is an autonomous organization funded by Department of
Biotechnology (DBT), Ministry of Science and Technology, Government
of India. It is contended that it is a registered society under the Andhra
Crl.A 670/2007 & 826/2007 Page 35 of 64


Pradesh (Telangana areas) Public Societies Registration Act, 1300 Fasli
(Act 1 of 1350F). The learned Public Prosecutor has also relied on
Geetha v. State of Kerala & Anr, 2005 (2) DMC 286 to contend that the
report of DNA fingerprinting issued by CDFD can be admitted in
evidence even without examination of the expert under Section 293 of
the Criminal Procedure Code. The learned Public Prosecutor refuting
the argument of the accused that the blood samples of the appellant
had not reached within 72 hours has contended that the blood samples
were delivered within 72 hours and in any case DNA Fingerprinting
technology is so advanced that even if the blood disintegrates, the DNA
remains stable unless it is burnt by fire and has relied on Dharam Deo
Yadav v. State of U.P, (13) Allahabad High Court 834. The learned
counsel has also relied on DNA Tests in Criminal Investigation, Trial
and Paternity disputes, a compendium of DNA analysis and its
application in legal system by Alia Law Agency.

59. This cannot be disputed that any report of a Government
scientific expert can be admitted under Section 293 of the Criminal
Procedure Code which is as under:-
“Section 293. Report of certain Government Scientific
Experts-
(1) Any document purporting to be a report under the
hand of a Government Scientific expert to whom this
section applies, upon any matter or thing duly submitted to
him for examination or analysis and report in the course of
any proceeding under this Code, may be used as evidence
in any inquiry, trial or other proceeding under this Code.
Crl.A 670/2007 & 826/2007 Page 36 of 64


(2) The Court may, if it thinks fit, summon and examine
any such expert as to the subject matter of his report.
(3) Where any such expert is summoned by a Court and
he is unable to attend personally, he may, unless the Court
has expressly directed him to appear personally, depute
any responsible officer working with him to attend the
Court, if such officer is conversant with the facts of the case
and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government
Scientific experts, namely-
(a) any Chemical Examiner or Assistant Chemical
Examiner to Government;

(b) the Chief Inspector of Explosives;

(c) the Director of Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director (Deputy Director or Assistant Director) of
a Central Forensic Science Laboratory or a State
Forensic Science Laboratory; and
(f) the Serologist to the Government.”

60. Under Section 293 of the Criminal Procedure Code a report of a
scientific expert duly submitted by him for examination or analysis can
be used as evidence without examining the expert under certain
circumstances. The Apex Court in State of H.P v. Mastram, (2004) 8
SCC 660 had held that the report of DNA fingerprinting cannot be
rejected on the ground that the Government scientific expert who has
issued the same, is not enumerated under sub Section (4) 293 of
Criminal Procedure Code. The Supreme Court had rather held that the
report of DNA Fingerprinting has to be admitted in evidence under sub
Section (1) of Section 293 as a report which is issued under the hand of
a Government Scientific Expert. Therefore, the report exhibit PW.29/A
of CDFD which has also been proved in the statement of
Crl.A 670/2007 & 826/2007 Page 37 of 64


Sh.S.P.R.Prasad, PW-29 can be considered and is admissible under
Section 45 of the Indian Evidence Act and cannot be ignored.


61. The learned counsel for the appellants have very emphatically
relied on the Information and Prescribed Formats for DNA
Fingerprinting Analysis which has been proved as exhibit PW.29/DA
stipulating that blood samples (2-3 ml) should be collected in sterile
blood collection material (EDTA vials) and that the samples should be
sent in ice and thermos flask either by a messenger or through courier
so as to reach CDFD within 72 hours after collection. The learned
counsel for the appellants has also emphasized that the blood samples
rd
were taken on 23 August, 2002 at about 4 PM though the accused
had already been produced in the Court at 2 PM and remanded to
judicial custody and there is no evidence as to who collected the blood
samples from the hospital where the appellants were allegedly taken nor
there is any record of receipt of those samples in the malkhana record
of the appellants.


62. The learned counsel for the appellant has further contended that
th
as per seizure memo Ex PW25/A DNA sample was taken on 20
August, 2002. However as per MLC, Ex PW 14/A the DNA was again
rd
taken on 23 August, 2002. Thus as per the counsel, the surplus of
DNA samples could have been easily used to manipulate the evidence
by means of tampering with the clothes of the victim Sarita and
Crl.A 670/2007 & 826/2007 Page 38 of 64


therefore the CDFD report should not be relied on. This argument may
sound impressive at the first blush, however, it is to be repelled since
the DNA samples were taken by means of taking the appellants blood
while the CDFD report Ex. PW 29/A clearly stipulates that the
biological fluid i.e. the semen present on the source of the clothes of the
victim Sarika is comparable with the blood sample of appellant Vinay
and it is not the case of the appellant that during his medical
examination his semen samples were seized by the prosecution. Thus
the question of manipulation does not arise and the fact that the DNA
samples of the appellants were taken on two occasions does not
prejudice the appellants in any way nor cast any doubt about this
evidence.

rd
63. Dr. Raman Bhutani had examined appellant Vinay on 23
August 2002 at 4 pm for a general physical examination and for the
collection of the blood sample of DNA Test at Baba Sahib Ambedkar
Hospital, Delhi. However since he wasn‟t in the services of the hospital
anymore, Dr. Kuldeep Singh, CMO, Baba Sahib Ambedkar Hospital,
PW-14 who was conversant with the handwriting of Dr. Raman had
endorsed the MLC prepared by him. As per MLC, Ex PW 14/A the blood
sample was collected in EDTA vial and activator vial, i.e. in two vials
having 5 ml each. He further deposed that as per the document the
sample as well as the MLC was handed over to HC Parkash. The learned
counsel for the appellant has doubted the proper collection of the DNA
Crl.A 670/2007 & 826/2007 Page 39 of 64


samples since HC Prakash Pardhan, PW-20 had deposed that the
samples were taken into possession by the IO and was subsequently
received by him on the same night from the MHCM. As per the learned
counsel this is a major contradiction and the same casts a doubt on the
DNA samples and therefore, the same ought not to be relied on.
However this argument cannot be accepted since as per the deposition
of PW-23 HC Hari Kishan who was posted as MHCM at PS Rohini at the
rd
relevant time, was examined. He categorically deposed that on 23
August, 2002 Addl. SHO Heera Lal the IO in the matter had deposited
two pullandas duly sealed with the seal of SB and two sample seal,
which was then deposited by him in the malkhana vide entry No. 2564
in register no. 19.

64. This fact is substantiated by the deposition of PW-20 as well who
deposed that the pullandas were taken into possession by the IO and he
had received the pulandas from the MHCM which he had taken to
CDFD, Hyderabad for DNA testing. The endorsement on the MLC, Ex
PW 14/A regarding the samples being handed over to PW-20 may have
been made since PW-20 had accompanied the appellant at the time he
was being medically examined. This can only be clarified by the Doctor
who examined the appellant Vinay. However since he was unavailable
he could not be examined on this aspect. In any case in light of the
deposition of PW-23 as well as the documentary evidence pertaining to
malkhana, the deposition of PW-20 cannot be doubted.
Crl.A 670/2007 & 826/2007 Page 40 of 64



65. PW-20 had further deposed that he had left for Hyderabad by air
th
at about 4:30 a.m. and reached in the night on 24 August, 2002. He
th
also deposed that since 25 of August, 2002 was a holiday, as such he
th
deposited the pulanda on 26 August, 2002. He also endorsed that till
the pullandas were deposited, they remained intact and were not
tampered with. Thus from the point of collecting the DNA samples to
the point of submitting them to CDFD, the appellants have not been
able to show which would create any doubt or such inferences can be
deducted that there could be any tampering or contamination of the
th
same. This is further substantiated by the document dated 26 August,
2002 acknowledging the receipt of the material objects & DNA testing
charges, Ex PW 29/AB as it categorically stipulates that the seals were
intact and tallied with the specimen seal sent. It also clarified and
corroborated that the samples were brought by Shri Prakash Pradhan,
HC No. 276/NW. The trial court too has negated the argument
regarding the delay and has relied on 1996 Cr.L.J 822 DB holding that
if delay in sending the sample is explained then it is not fatal to the
case of the prosecution. It was further held in 1979 (4)SCC 746 that if a
laboratory found the sample fit, then no benefit on account of alleged
delay can be given to the accused. The trial Court further observed that
in the present matter the laboratory had found the samples fit and
conducted the test and gave the report, thus no benefit of the alleged
Crl.A 670/2007 & 826/2007 Page 41 of 64


delay or alleged contamination of the samples can be claimed by the
appellants.

66. The clothes of the deceased, Sarika were examined by the CDFD.
Though the counsel for the appellants contended and alleged about
tempering of the same. However a perusal of the post mortem report
clearly shows that the clothes of the victim were handed over to the
th
police in a sealed condition on the 20 of August, 2002. This fact is
further substantiated from the perusal of the store room register (PART
1) which stipulates that in entry 2551/2002 Addl. SHO Heera Lal had
deposited the black polythene containing the clothes of the victim
th
sealed with the seal DKS, in the malkhana on 20 August 2002 which
was thereafter handed over to PW-20 who had deposited the same with
the CDFD in a sealed condition. Thus the plea of the learned counsel for
the appellant that there had been or could be tempering with the
clothes of the deceased cannot be accepted in the facts and
circumstances.

67. Learned counsel for the appellant has further contended that
though as per the malkhana register there were 18 plastic dibas
deposited in the malkhana, as per the deposition of PW-23 there were
only 16 dibas that were re-deposited on 12th April, 2005. The learned
counsel contended that since one of the 18 items could have also been
the clothes of the deceased Sarika, therefore, tampering of the same
cannot be rules out. Learned counsel for the appellant has further
Crl.A 670/2007 & 826/2007 Page 42 of 64


alleged that as per the malkhana register the pullandas in entry
2511/2002 were sent to the CFSL as well as the CDFD Hyderabad. It
was thus contended that there was absolute confusion regarding which
samples were sent where. And therefore the authenticity of the DNA
samples should not be accepted.

68. At this stage it will be imperative to ascertain which of the items
were sent to the CDFD, Hyderabad and which were sent to the FSL.
DESCRIPTION OF PARCELS & CONDITION OF SEAL/S THAT WERE
SENT TO THE FSL, ROHINI AS PER THE REPORT:

“Parcel-„2‟ : One jar sealed with the seal of “DKS”, labelled
as PMR No.530/2002 Viscera of Sarika. It was
found to contain exhibit „2‟.
Exhibit-„2‟ : Unidentified tissues, material with brown
liquid.

Parcel-„3‟ : One jar sealed with the seal of “DKS”, labelled
as PMR No.530/2002 Viscera of Sarika. It was
found to contain exhibit „3‟.
Exhibit –„3‟ : Unidentified blackish material, sticking inside
the jar.
Parcel-„4‟ : One jar sealed with the seal of “DKS”, labelled
as PMR No. 530/2002 Sarika. It was found to
contain exhibit „4‟.
Exhibit-„4‟ : Long black hairs with root.

Parcel „5‟ : Ten small jars sealed with the seat of “DKS”. It
was found to contain exhibit „5‟.
Exhibit-„5‟ : Tissues with nails stated to be nail clippings, of
Sarika.
Parcel-„6‟ : One white envelope sealed with the seal of
“DKS” labeled as PMR No. 531/2002 Bharat. It
was found to contain exhibit „6‟, kept in a
polythene packet.
Exhibit-„6‟ : Blood gauge cloth.
Parcel-„7‟ : One jar sealed with the seal of “DKS”, labeled
as PMR No.531/2002 Viscera of Bharat. It was
found to contain exhibit „7‟.
Crl.A 670/2007 & 826/2007 Page 43 of 64



Exhibit-„7‟ : Pieces of liver, spleen and kidney.
Parcel-„8‟ : One jar sealed with the seal of “DKS”, labeled
as PMR No. 531/2002 Viscera of Bharat. It
was found to contain exhibit „8‟.
Exhibit-„8‟ : Stomach and piece of small intestine with
contents.
Parcel-„9‟ : One jar sealed with the seal of “DKS”, labeled
as PMR No.531/2002 Bharat. It was found to
contain exhibit „9‟.
Exhibit-„9‟ : Blood Sample vol. approx. 25 ml.”

THE ITEMS SENT TO CDFD, HYDERABAD AS PER THE REPORT Ex.
PW 29/A:
1. A sealed plastic bottle containing postmortem blood of
deceased, Sarika.
2. A small sealed plastic box, containing gauze cloth: vaginal
swab of deceased, Sarika.
3. A sealed plastic coloured big polythene cover containing cothes
of the deceased, Sarika.
4. Blood sample of accused Mr Vinay in two sealed vials.
5. Blood sample of accused Mr. Munish in two sealed vials.

Thus from the above it is clear that none of the items that were
sent to the CFSL were sent to the CDFD, Hyderabad and that the 18
dibas do not include the polythene bag containing the clothes of the
victim, Sarika.

69. It was held in State of Rajasthan v. Daulat Ram: 2004 Cr.L.J
2992 (2995) that the entire chain of biological evidence from the point of
its seizure, collection of samples its preservation, deposition and
preservation in CDFD and till the time it reaches in the hand of analyst
has to be proved beyond reasonable doubt by unimpeachable evidence.

Crl.A 670/2007 & 826/2007 Page 44 of 64


70. In cases involving biological evidence the concept of “chain of
custody” needs to be established. “Chain of custody” means the
complete record of biological evidence from the place of its extraction
and up to its presentation in the Court and its complete documentation
at every stage. The possession, time and date of transfer, and location of
evidence from the time it is obtained to the time it is presented in the
Court is called the “chain of custody”.

71. The learned counsel for the appellant has not been able to show
any missing link in the `chain of custody‟ so as to disbelieve or discredit
the DNA samples or the sealed clothes of the deceased Sarika that were
send to the CDFD, Hyderabad, for the purpose of DNA testing, as from
the point of its seizure to its submission before the CDFD no tampering
has been established nor can be inferred conclusively in the facts and
circumstances.

72. Deposition of PW-29 who analyzed the DNA samples and matched
the DNA samples of appellant Vinay with that of the blood found on the
clothes of the victim Sarika is very material.

73. Sh.S.P.R.Prasad, Senior Technical Examiner, PW-29 who had
th
proved his report dated 15 October, 2003 as exhibit PW.29/A had
deposed that the postmortem blood and vaginal swab of the deceased
Sarika did not yield DNA suitable for analysis. The DNA from the
clothes of deceased Sarika were compared with the blood sample of
Crl.A 670/2007 & 826/2007 Page 45 of 64


appellants Vinay Kumar and Munish and on comparison the DNA
profile and biological fluids on the clothes of deceased Sarika was found
to be comparable with the DNA profile of blood of Vinay Kumar,
however, the biological fluids from the clothes of the deceased Sarika
was not the source of blood sample of the appellant Munish. The
witness also proved gene scan analysis as exhibit PW.29/B for which
microsatellites; D18S51; D7S820; FGA; D13S317; D21S11; vWA;
D5S818; D8S1179; D3S1358 and Amelogenin were used.

74. The said witness in the cross examination had disclosed that the
th
vials of controlled blood samples were received on 24 August, 2002,
th
however, the acknowledgement was given on 26 August, 2002 and he
specifically denied the suggestion that EDTA vials were deposited in
th
CDFD on 26 August, 2002. According to the said witness STR method
was used for analyzing the DNA fingerprinting. According to him at the
relevant time the STR method required 13 STR plus one amelogenin to
determine the identity of the person, however, for DNA fingerprinting by
STR method 9 STR plus amelogenin was used. He specifically denied
the suggestion that the kit used was for 13 STR and not for 9 STR. He
deposed that he conducted the test individually and the band in
amelogenin is more important in lane No.2 to 4 than in lane No.1 and
denied the suggestion that proper fingerprinting was not done. He also
denied that if the samples are received after 72 hours the chances of
contamination are more. The deposition of said witness is reliable and
Crl.A 670/2007 & 826/2007 Page 46 of 64


has not been shaken by the counsel for the appellant in any convincing
manner.

75. Learned counsel for the appellant has contended that PW-29
th th
himself deposed that the samples were received on 24 and not 26 of
August, 2002 and therefore there is inconsistency as to when the
samples were received and in light of this the entire testimony of the
witness PW-29 cannot be given much weightage. This plea is not
sustainable and acceptable in the facts and circumstances of the case.
As per the deposition of PW-29, the EDTA vials were not received by
him personally. Therefore, much will not turn regarding the date of
receiving the samples and DNA finger printing and report cannot be
rejected or not relied.

76. PW-9 further deposed that the STR method was used for
analyzing the finger print and that at the time STR method required 13
STR plus one amelogenin to determine the identity of the person,
however in the present case only nine STR plus amelogenin since he
was using the Ampflrstr profiler plus kit which was of an American
company and as per the requirement of the kit there was only need to
use 9 STR only. He further clarified that the kit was of applied bio
Systems. He also categorically denied the suggestion that the kit is used
for 13 STR and not 9 STR and further deposed that the literature to
support the version would be available on the internet of the company‟s
literature.
Crl.A 670/2007 & 826/2007 Page 47 of 64



77. He further deposed that he could not get DNA in the vaginal
swab and the post mortem blood, thus if any manipulation was done or
any contamination of the samples was shielded by PW-29, then he
would have detected DNA from these samples as well. The procedure
followed by the expert PW-29 is thorough and unimpeachable, clearly
supporting his findings and no doubt can be caste on his version and
report. PW-29 had also deposed that the biological fluid present on the
source of exhibit i.e. clothes of deceased Sarika did not match the
source of blood sample of Munish, the implications of which shall be
dealt with hereinafter.

78. A perusal of the procedure for collection & forwarding of the
samples for DNA fingerprinting analysis provided on the website of
CDFD proved as EX. PW 29/DA clearly stipulates that the blood
samples (2-3 ml) can be collected in the sterile blood collection material
(EDTA vials). These samples should then be sent in ice in a thermos
flask either by a messenger or through courier, so as to reach CDFD
within 72 hours after collection and as per the deposition of PW-20 all
the necessary precautions were complied with and the samples were
duly deposited within 72 hours with the CDFD. Thus the inevitable
inference is that the procedure had been complied with and no
tampering or contamination of the samples can be inferred in any
manner.

Crl.A 670/2007 & 826/2007 Page 48 of 64


79. Learned counsel for the appellant has also contended that even
though the pulandas of the DNA samples of the appellants, were
th
deposited in the office of CDFD on 26 August, 2002, however the DNA
typing report was prepared only after a lapse of more than 1 year on
th
15 October, 2003. Thus it is contended that there is a good chance
that the DNA samples would have disintegrated or could have got
contaminated during the period. However, it is a scientifically accepted
fact that DNA‟s can be preserved for a very long period of time, if the
proper preservation procedures are followed. Thus the fact that PW-29
analyzed the samples after a period of one year does not affect its
validity and analysis. In the case of Kali Ram v. State of Maharashtra,
1989 Cr.L.J. 1625 (Bom) it was held that Semen stains on the clothes
can be found from five to 18 years, and that it is not proper to say that
the examination of sperm and semen done after 4 months was
valueless. It is also not the case of the appellant that PW-29 had any
personal grudge as against the appellant, Vinay due to which reason he
would have falsely implicated him in the matter.

80. While ascertaining the forensic evaluation of the biological
evidence the following factors and parameters needs to be taken into
consideration:
 Whether Forensic Laboratory is Government-
recognised or not;
 Information about accreditation of laboratory must be
obtained;
Crl.A 670/2007 & 826/2007 Page 49 of 64


 Whether Forensic Scientists and Lab-Technicians are
qualified and technically trained to do the job
satisfactorily or not;
 Which type of method of testing the testing, the
laboratory will adopt for use [in India BKm 2(8) probe
is used by CCMB];
 What is the reputation of laboratory about its
accuracy, quality control and the like;
 Which type of equipments will be used in the process
of testing; whether they are in perfect condition; and
whether they are latest and advance;
 What procedure will be followed by the laboratory for
testing and re-testing of DNA;
 Whether proper precautions are taken to prevent
contamination of sample during its collection,
preservation and transportation;
 Whether the scientist, who will perform the test,
knows fully about description and methodology of
DNA profiling and about its technique and limitations
and the complexities of the Forensic Science. [S]*

The facts deposed and established unequivocally demonstrate
that all the necessary guidelines were adhered and followed and there
are no cogent reasons to disbelieve the DNA Report.

81. The relevant testimony of PW-7, who conducted the post mortem
is as under:
Crl.A.No.670/2007 at page No.000028
“On the same day, at 12 PM, I conducted post
mortem on the dead body of Sarika a female aged 22
years.
The deceased was wearing shirt, salwar,
underwear blood stained. Shirt was sleeveless and
was torn on both sides of the shoulder. Hair band
and 11 hairpins. She was of average built,
conjunctivae was congested and showed hemorrhagic
spots, blood was present at vaginal orifice.
On external examination: 1) There was scretch
nail marks over the right side of the neck at the level
of thyroid cartilage placed anteriority, size being 2 cm
X 1 mm, 1 cm X 1 mm.
Crl.A 670/2007 & 826/2007 Page 50 of 64


2) Teeth marks present at the pinna of the right
ear, two teeth marks were present which were 5mm X
5 mm each.
3) Pressure abrasion on metel upper border of the
right breast 4mm X 1mm.
4) Bruise over the outer surface of the right arm 5
mm X 5 mm.
On internal examination, brain was congested
and oedematous, intracranial punctuated
hemorrhagic were present. On examination of neck,
clotted blood was present on right anterolateral
connective tissues and muscles of the neck hyoid
bone was fractured at its right cornu, clotted blood
present around it, posterior surface of the cricoids
cartilage showed clotted blood approximately 5 ml.
There was frothy secretion in the trachea. On
examination of the chest, visceral pleural showed
tardieu spots. Both lungs were congested and
oedematous and tardieu spots were also present over
the visceral pericardium. Stomach contained 200 ml
of undigested magi like noodles, hymen was torn, it
was fresh injury, unterus was normal.
Opinion: Cause of death was asphyxia due to
manual throttling, manner of death was homicide, all
injuries were antimortem and were of same duration,
time since death was approximately 22 hours. Sexual
assault prior to the murder cannot be ruled out.
Detailed report will be given after receipt of viscera
and vaginal swab report.
Opinion regarding the belt: One sealed parcel
was received from IO Inspector Hira Lal of PS Rohini
which was found to be sealed of KKS. It was said to
contain a belt which was used in strangulating
brother and sister on 19-8-02, referring to my post
mortem report, parcel was opened and was
containing a school belt having the buckle bearing
the monogram of Kendriya Vidyalaya. It was of
approximately of 82 cm long and 3 cm broad.
Strangulating marks over the neck of dead body of
Bharat were possible by this belt. Belt was re-sealed
with the seal of DKS and was handed over to the IO
on 20-8-02. My detailed report in this regard is
Ex.PW7/C signed by me at point A.”

82. Thus the injuries on the body of the deceased, Sarika in addition
to the DNA report that matched the DNA of the appellant Vinay with the
Crl.A 670/2007 & 826/2007 Page 51 of 64


biological fluid (semen) found on the clothes of the deceased and the
opinion of PW-7 stating that sexual assault prior to murder cannot be
ruled out, all point towards the undeniable inference that the appellant
Vinay had raped the deceased, Sarika and then murdered her by
strangulation. Thus the findings of the Trial Court in this regard cannot
be faulted.

83. It is also imperative to assess the recoveries effected as against
the appellants. As per the case of the prosecution after recording the
disclosure statement, the appellants had taken the police to the
Hardware store belonging to Roshan Lal PW-4 as it was the store from
where they had purchased the four blades and one aari. However
during the examination of PW-4, the said witness had turned hostile
and refused to identify the appellants as the very same person who had
purchased the said items from his store. Regardless of the fact that the
witness was declared hostile, it does not mean that his entire evidence
needs to be effaced from the record. To the extent that it supports the
case of the prosecution it can be taken into consideration. A perusal of
the testimony clearly shows that even though PW-4 refused to identify
the appellants, he did depose that four blades and one aari was
purchased from his shop by two boys and subsequently he had even
identified the four blades, Ex P-1 to P-4 and the aari, Ex P-5 recovered
by the police as the ones which were sold by him. The four blades and
one aari were brought in a sealed parcel bearing the seal of KKS and
Crl.A 670/2007 & 826/2007 Page 52 of 64


therefore could not have been tampered with. Thus recoveries pursuant
to the disclosure statement of the appellants have been established.

84. It is a settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose
to treat him as hostile and cross examine him. The evidence of such
witnesses cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that their version
is found to be dependable on a careful scrutiny thereof. Reliance for this
can be placed on Bhagwan Singh v. The State of Haryana: AIR 1976 SC
202; Rabindra Kumar Dey v. State of Orissa: AIR 1977 SC 170; Syad
Akbar v. State of Karnataka: AIR 1979 SC 1848 and Khujji @ Surendra
Tiwari v. State of Madhya Pradesh: AIR 1991 SC 1853).

85. Similarly PW-5 Kishan Murari too turned hostile and refused to
identify the appellants as the same persons who had purchased the iron
th
rod Ex P-6 from his shop. However he did depose that on 20 August,
2002 the police along with the two appellants, who he identified in
court, had come to his shop and that they had told the police that they
had purchased the iron rod from the shop ¾ days prior to the incident.
He also identified the rod, which was produced in court in a sealed
pulanda bearing the seal of KKS, as the one being purchased from his
shop. Therefore in light of the facts and circumstances this recovery too
stands established as against the appellants.

Crl.A 670/2007 & 826/2007 Page 53 of 64


86. As to the belt which was recovered by the police, the same was
also examined by PW-7 during examination of the body at the time of
post mortem, wherein he opined that strangulating marks over the neck
of the dead body of Bharat was possible by the said belt. He had
mentioned the same in his detailed report Ex. PW7/C. The learned
counsel for the appellants has contended that there were chances of
tampering with the belt, however this has to be ruled out as in his
deposition, PW-7 has stated categorically that after examining the belt,
it was resealed with the seal of DKS and handed over to the IO and the
same was produced in the same sealed condition in court, which was
thereafter opened and was then correctly identified by PW-7 as well as
the mother of the victims, PW-2 in court. Therefore there is no question
of the belt being tampered and is one of the fact in the chain to
inculpate the appellant Vinay.

87. The three watches which were recovered from both the appellants
i.e. two from appellant Vinay and one from appellant Munish, also
needs to be considered. These watches were duly identified in TIP by the
mother of the victims. PW-17 Sh. Inderjeet Singh MM posted at Tis
Hazari Court was also examined who deposed that the TIP proceeding
were conducted with due caution as 5 watches brought by the IO were
mixed with the three watches recovered from the appellants. PW-2 had
duly identified the watches as those belonging to her husband, her
daughter and her son respectively. The same watches were thereafter
Crl.A 670/2007 & 826/2007 Page 54 of 64


released on superdari to PW-2. The objections of the learned counsel
that not enough watches were mixed up with the ones that were
recovered is without much substance and does not dilute the
evidentiary value of recoveries. The trial court has also observed that no
such question, as has been canvassed by the learned counsel for the
appellants, was put to PW-17 in his cross examination. If the Ld. MM
was not satisfied about the watches brought to be mixed up with the
three watches recovered from the appellants then he would have
refused to conduct the TIP. Since the proceedings also reveal that as the
property brought for being mixed up did not contain currency notes,
therefore, the currency notes from the case property were removed and
TIP of the Rs 10,000/- allegedly recovered at the instance of appellant
Munish were not put to TIP. There are no cogent reason to doubt the
TIP proceedings and the validity of the identification of the three
watches on the basis of depositions and documents in the facts and
circumstances.

88. Regarding motive the prosecution has contended that the motive
of the appellant Vinay was to usurp the property of Neelam Kler by
committing the offence. While the learned counsel for the appellants
have contended on the contrary stating that the motive has not been
established. She contended that if motive was to usurp the property
then the appellant Vinay would have conspired to kill Nellam Kler as
well. However as per the case of the prosecution as well he conspired to
Crl.A 670/2007 & 826/2007 Page 55 of 64


kill the children only. It is also contended that in light of the facts and
circumstances the case is that of dacoity and murder which as
emphasized by the learned counsel for the appellant was the initial
impression of the police authorities who reached the spot as well. The
motive as alleged by the prosecution is plausible and rationally
acceptable, since the only person to have gained from the incident was
the appellant Vinay. He was married to the third child of PW-2. In the
absence of the other two children, his wife would have inherited the
entire property. The learned trial court has dealt with the motive by
negating the arguments of the appellant that the motive would only
stand proved if PW-2 had been murdered. Trial court has observed that
murdering Neelam Kler alone would not have served any purpose as the
remaining two children would have inherited the property, therefore
elimination of the remaining two children was a must for appellant
Vinay for the inheritance of the property by his wife. The reasoning and
findings of the Trial Court for the motive are plausible and cannot be
repelled on the pleas raised by the counsel for the appellant Vinay.

89. The plea by the learned counsel for the appellant of the possibility
of dacoity and murder by the alleged dacoits cannot be accepted.
Nothing much of value was taken from the house, except for the three
watches which are not of much value. Intention intention of ransacking
the entire house was to create the impression of dacoity or burglary.

Crl.A 670/2007 & 826/2007 Page 56 of 64


90 What could be the motive of Appellant Munish? The motive
against said appellant has not been abolished. There is no evidence
produced by the prosecution to show that he had any ill-will towards
the family of the deceased or that he had anything to gain substantially
from executing the crime with appellant Vinay. Merely on the ground
that he is the servant of the appellant Vinay and so a conspiracy was
planned between the two is not sufficient to inculpate him.

91. Learned counsel for the appellant had contend that the entire
investigation was a tainted. Oination of the helmet by not lifting any
fingerprints or analyzing hair remnants has shielded the actual culprits
and in any case as per the case of the prosecution itself the appellants
had come on foot, hence there is no question of the helmets belonging
to the appellants. The Trial Court has disregarded this argument on the
reasoning that the helmet could have been left by some witness or
police official in a hurry. This Court does not fault the reasoning of the
Trial Court. Some of the witness including PW-2 who had first reached
the spot deposed regarding the helmet on top of the TV set. In fact PW-2
had categorically mentioned about the TV set found on top of the stairs
but she didn‟t mention about any helmet on top of the TV set. In any
case it is very likely that during all the investigative works any of the
persons present at the spot may have left his helmet behind.
Regardless, the helmet does not in any case exculpate the appellant
Crl.A 670/2007 & 826/2007 Page 57 of 64


Vinay nor creates any doubt in the version of the prosecution so as to
give him any benefit of doubt.

92. Learned counsel for the appellant has further doubted the finger
print report, Ex PW 18/A wherein it is stipulated that the chance prints
were lifted from almirah lock, dibba(4), sweet steel and the same was
developed, since PW-27 had categorically deposed that no finger-prints
were lifted. However inspite of this the prosecution case does not suffer
as the finger print report is not of much evidentiary value since the
finger prints of the appellants were neither compared nor matched with
the chance prints lifted from the spot and hence is not the basis for
inculpating the guilt of the appellants. Learned counsel had also
pointed out that the report had advised the police to send the fingers
and palm impressions of the inmates, suspects and deceased for
comparison with the developed chance prints, however it wasn‟t done.
The trial Court viewed this as negligence on the part of the police but
has not attributed much importance to it since negligence on the part of
the police cannot demolish the prosecution case. In support of its
reasoning the trial court has relied on the following judgments: Chotu v.
State of Maharashtra 1997 Cr.L.J. 4304 and AIR 1997 SC 3471. In any
case as per the disclosure statements of the appellants and the
subsequent recoveries made, it is the case of the prosecution that the
appellants had used gloves which were recovered at the instance of the
appellants, Ex PX and Ex PX1. Therefore the appellants cannot benefit
Crl.A 670/2007 & 826/2007 Page 58 of 64


from the non-comparison of their finger prints with the chance prints
developed at the spot.

93. Learned counsel for the appellant also negated the FSL report, Ex
PW 28/A on the ground that even though as per all the documents and
the witnesses the pullandas were send to FSL Malviya Nagar, however
the report was received from FSL, Rohini. Therefore it was contended
that the same cannot be relied upon. A perusal of the evidence on
record shows that the PW-21 Constable Parmod had deposed regarding
the collection of the pullandas on 1st November, 2002 and depositing
the same to FSL Mehrauli, while PW-23 HC Hari Kishan the MHCM had
deposed that on 1st November, 2002 the pullandas were sent to FSL,
Malviya Nagar through Constable Parmod Kumar. However the
inconsistencies in this regard are not substantial since PW-28 Amar Pal
Singh, Senior Scientific Officer, Chemistry Delhi was examined and he
even proved the FSL Report, Rohini, Ex PW 28/1 which was authored
by him. With respect to the FSL report the arguments of the learned
counsel for the appellant is rational and the investigative process of the
police authorities does suffer a blow, as the error is very apparent.
However the fact remains that the conviction of the appellants does not
base itself on the FSL Report as neither the Trial Court nor this Court
has relied upon it. It is also not the case of the prosecution that the FSL
Report holds any incriminating findings as against the appellants,
therefore on any case it is not of any evidentiary value. Hence, since the
Crl.A 670/2007 & 826/2007 Page 59 of 64


FSL report, Ex PW28/A has not been relied on in any way whatsoever,
therefore the same is not sufficient to exculpate the appellants.

94. Learned counsel for the appellant had further argued that the
very arrest of the appellants is doubtful since as per the deposition of
th
PW-3 he went to the police station on 19 August, 2002, and later on
appellant Munish and Vinay both were also brought to the police
station on the same day. This fact is also substantiated by the
deposition of DW-1 as well. Even the arrest memo of the appellant is
th
inconsistent since at the top portion the date mentioned is 19 August,
th
2002 while the “date of arrest” column mentions the date as 20
August, 2002. The learned counsel for the appellant alleged that this is
contrary to the case of the prosecution since as per their case it is only
after issuing the notice u/s 160 of the Cr.P.C. that the appellant Vinay
th
was arrested on 20 August, 2002, hence it is contended that this is
reflective of the ploys employed at falsely implicating the appellants.
However this court does not find much merit in the arguments of the
learned counsel for the appellants since in the deposition of PW-3 he
himself in the same breathe corrected himself and stated that the
th
appellants were arrested on the 20 August, 2002, in any case doubt as
to the exact date is bound to happen when the difference between the
date of incident and the date of arrest is a day apart from each other.
Also the deposition of DW-1 the father of the appellant Vinay is bound
to be in the favour of his son and hence it cannot be believed blindly in
Crl.A 670/2007 & 826/2007 Page 60 of 64


the face of documentary evidence. Regarding the arrest memo, normally
the date of the FIR is mentioned at the top portion while the column for
the date of arrest mentions the date on which the suspect is arrested.
Hence there does not seem to be any evidence on record to lead to the
th th
inference that the appellants were arrested on the 19 and not the 20
of August, 2001. Hence this court does not find any illegality or
unsustainability in the reasoning of the Trial Court.

95. The case of the prosecution is based on circumstantial evidence.
While dealing with circumstantial evidence the onus is on the
prosecution to prove that the chain is complete and any infirmity or
lacunae in the prosecution case cannot be cured by a false defence or
plea. The condition precedent which must be fully satisfied before
conviction can be based on circumstantial are as follows:-
( 1 ) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned must or should and not may be
established;
( 2 ) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty;
( 3 ) the circumstances should be of a conclusive
nature and tendency;
( 4 ) they should exclude every possible hypothesis
except the one to be proved; and
( 5 ) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.

Crl.A 670/2007 & 826/2007 Page 61 of 64


96. The Supreme Court in a number of cases has observed that while
appreciating circumstantial evidence, Court must adopt a very cautious
approach and the conviction should be recorded or upheld only if all the
links in the chain are complete pointing out to the guilt and every
hypothesis of innocence is capable of being negated on evidence. This
also cannot be disputed that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be
accepted. The circumstance relied upon must be found to have been
fully established and the cumulative effect of all the facts so established
must be consistent only with the hypothesis of guilt. The Court must be
satisfied of
a. That the circumstances from which the
inference of guilt is to be drawn, have been fully established
by unimpeachable evidence beyond a shadow of doubt.
b. That the circumstances are of a determinative
tendency unerringly pointing towards the guilt of the
accused, and
c. That the circumstances, taken collectively, are
incapable of explanation on any reasonable hypotheses
save that of the guilt sought to be proved against him.


97. Hence in view of the evidence of PW-3, the recoveries affected at
the instance of appellant and the scientific evidence of the DNA of the
appellant matching with the biological fluid found on the clothes of the
deceased, Sarika as per the CDFD Report, and the motive as
established by the prosecution the chain of circumstantial evidence is
complete and is substantial in inculpating the guilt of the appellant,
Crl.A 670/2007 & 826/2007 Page 62 of 64


Vinay. Thus the judgment of the Trial Court convicting the appellant,
Vinay is upheld, so far as conspiracy under Section 120 B is concerned,
his conviction and sentence is set aside.

98. With regard to the conviction of the appellant Munish Kumar,
servant of appellant Vinay, other than the evidence of PW-3 and the
recoveries affected allegedly at the instance of the appellant there is
absolutely no other evidence that links the appellant Munish to the
offence committed in the present matter. The learned trial court has
relied on many judgments upholding that conspiracy has been
established by the prosecution, pursuant to which the appellant
Munish was convicted u/s 120-B, 449/120-B and 302/120-B of the
IPC. However a perusal of the evidence on record does not point out any
direct or indirect evidence establishing the guilt of the appellant
Munish. Even as per the CDFD Report, Ex PW 29/A the DNA sample of
appellant Munish did not match with any of the exhibits provided to the
CDFD. Nor has the prosecution been successful in establishing the
motive as against the appellant Munish. Therefore in light of the facts
and circumstances and the chain of circumstance not standing proved
as against the appellant Munish, this court holds that he is entitled to
the benefit of doubt on account of the prosecutions failure to prove its
case beyond all reasonable doubt as against the appellant, Munish.
Thus the appeal of appellant Munish is allowed and the judgment of the
trial court convicting and sentencing him is set aside.
Crl.A 670/2007 & 826/2007 Page 63 of 64



99. In the circumstances, the Criminal Appeal No.670/2007 filed by
appellant Vinay Kumar is dismissed and his conviction by order dated
th th
7 September, 2007 and his sentence by order dated 7 September,
2007 is upheld except his conviction under Section 120 B and sentence
is set aside. The appeal filed by the appellant Munish Kumar being
Criminal Appeal No.826/2007 is allowed and his conviction by the
th
Sessions Court by order dated 7 September, 2007 and his sentence by
th
order dated 7 September, 2007 is set aside. Appellant Munish Kumar
is set free forthwith by the appropriate authorities. A copy of this order
be sent to the Superintendent, Tihar Jail for releasing the appellant
Munish Kumar forthwith.


ANIL KUMAR, J.





V. K. SHALI, J.

July 3, 2012
„k‟
Crl.A 670/2007 & 826/2007 Page 64 of 64