Saleem @ Kalua v. The State (NCT of Delhi)

13. In view of the above observations, the learned Trial Court has found the appellants guilty and convicted them under Sections 302/34 of the IPC and 201/34 of the IPC, and imposed the punishment as detailed hereinabove.

SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL FOR THE APPELLANT SALEEM@KALUA IN CRL.A. 461/2002

14. Ms. Isha Khanna, the learned counsel for the appellant Saleem, while reading out the testimony of PW-2 Neelam, submits that she is not a trustworthy witness for a number of reasons. She submits that there are multiple contradictions in her statements. In this regard, she highlights the contradictions in her testimony regarding the jaali in the brick wall through which she allegedly saw the incident, the presence of the light, the non-opening of the clinic door, the distance of Savitri & Maya‟s jhuggi from the house of the witness, her story of suffering from headache on the night of the incident, the clothes of the deceased and the awareness of the deceased regarding Saleem‟s visits to the house.

15. She submits that PW-2 has given contradictory versions regarding the size of the holes on the jaali, existence of transparent glass thereon, and her position while allegedly witnessing the occurrence. She submits that PW-1, PW-2 and PW-14 have also contradicted each other regarding the number of holes in the jaali, its size, and presence of glass, which makes them also untrustworthy and unreliable witnesses. She further submits that neither the height nor visibility angle of the jaali was ever established or known. Significantly, the jaali did not face the main road. She submits that as per PW-2, the jaali was about 2-3 feet but as per the Site Plan (Ex PW1/D), the jaali was at the corner of the clinic but the height of the jaali from the floor level was not known as it was not measured by anyone. She submits that in such circumstances, it was highly improbable for PW-2 to have witnessed the alleged incident in the manner deposed by her.

16. Ms. Khanna further submits that PW-2 made materially false statements regarding the existence of electricity in the jhuggi. While she claimed that an electricity meter was installed and electricity bills were issued in the name of the deceased, PW-3 and PW-27 categorically deposed that there was no electricity meter and that illegal temporary connections were being drawn from nearby poles. PW-2, later in her deposition, admitted that there was no electricity pole on the road. She submits that, therefore, the prosecution failed to establish that there was sufficient light at the spot and, even assuming that electricity was being drawn through an unauthorized connection, there is no evidence to establish that any bulb was installed and switched on during the relevant night so as to enable PW-2 to witness the alleged incident in the manner claimed by her.

17. It is further submitted by the learned counsel for the appellant Saleem that PW-2 Neelam contradicted herself regarding the alleged jammed clinic door. At one stage she stated that the door could not be opened as it was jammed, whereas later she admitted that the deceased regularly used the same door for the patients till the very night of the incident.

18. She also points out that there are contradictions regarding the alleged administration of intoxicating substance to the deceased. In the complaint, it was alleged that intoxicating tablets were being administered daily through milk, whereas during deposition PW-2 improved her version by alleging administration of intoxicating medicine on the night of the incident as well. She submits that it is also not established which substance was given or administered to the deceased, and there was no effort even made by the IO to recover the intoxicating substances/medicines or pills. She submits that the deceased being a doctor, would have easily caught that he was being administered an intoxicating substance. His not doing so, itself shows that the story set up by the PW-2 is false.

19. She submits that PW-2 also contradicted herself regarding her alleged headache, her state of wakefulness during the night, and even regarding whether she had taken medicine for the same.

20. She submits that PW-2‟s version regarding the deceased wearing black pants and white shirt while sleeping during peak summer, stands contradicted by her own admission that the deceased ordinarily slept wearing baniyan and nicker.

21. She further submits that in the complaint (Ex. PW1/B), PW-2 Neelam states that appellant Saleem used to visit deceased‟s house for past 5-6 months and there was a quarrel between Roshni and deceased regarding the same, but during her examination on 20.08.1998, she deposed that the appellant Saleem used to visit the house of the deceased in the absence of the deceased, and further, in later examination, deposed that she did not tell her father that the appellant used to visit their house in his absence.

22. While referring the Site Plan (Ex PW1/D), the learned counsel for the appellant submits that as per PW-1, the Site Plan was prepared on 14.08.1996 in the presence of PW-2 Neelam and PW-3 Shakuntala, however PW-3 deposed that after the Police recorded her statement, she went back to Muwana on 13.08.1996 itself. Thus, it establishes that the Site Plan could not have been prepared at the instance of PW-2, as she was not in Delhi during that time. She submits that, therefore, the Site Plan cannot be relied upon.

23. The learned counsel for the appellant submits that the prosecution failed to establish the precise date and time of the alleged occurrence. None of the prosecution witnesses mentioned any specific date, and merely referred to a “Friday” about one to one-and-a-half months prior to the complaint. It is further submitted that PW-2 contradicted herself regarding the alleged time of the incident being 3:00 AM. At one stage, she stated that she inferred the time from the alleged statement of the appellant, whereas subsequently she claimed to have seen the time in a watch, despite admitting that she did not possess any watch.

24. The learned counsel further submits that even the place and manner of occurrence remained doubtful. In the complaint, the deceased was stated to be sleeping inside the room/jhuggi, whereas subsequently PW-2 changed her version and deposed that the deceased was sleeping in the courtyard.

25. She further submits that there are contradictions between the unscaled site plan and scaled site plan regarding the position of the cot, bathroom opening, jaalis, and even the point where the deceased allegedly struck his head, and the said contradictions in the two site plans establish that PW-2 could not have witnessed the alleged crime and thus, the alleged crime could not have been committed by the appellant and coaccused(s) in the manner as alleged.

26. The learned counsel for the appellant submits that there are material contradictions in the testimonies of PW-1, PW-2, and PW-3 regarding the arrival of PW-3 in Delhi and taking PW-2 to Muwana. She submits that these inconsistencies render doubtful the prosecution timeline as well as the date on which PW-3 allegedly first received information regarding the incident from PW-2.

27. She further submits that even the delay in lodging the complaint remains unexplained. It is submitted by the learned counsel that it is improbable that after allegedly witnessing the murder of her father and remaining awake throughout the night, PW-2 normally went to school on the very next day. She submits that despite allegedly witnessing such a gruesome incident, PW-2 neither disclosed the incident to anyone nor exhibited any disturbance in her normal routine or behaviour.

28. While referring to the impugned judgment, she submits that the learned Trial Court appears to have been swayed and seems to have been impressed by the deposition of PW-2 for the reason that it was identical to the complaint made by her, and has brushed aside the aforesaid contradictions by terming them as minor contradictions.

29. The learned counsel for the appellant submits that the learned Trial Court was wrongly swayed by the arguments of the prosecution that the witness was so terrified that she had to be provided with police security to depose before the Court. She submits that the security was granted on an application made by Shakuntala alleging threat to the life of PW-2 as well as her own life and not for the reason that the witness was terrified. She further submits that PW-2 admittedly used to come with PW-3 only, despite the fact that letters had been written by appellant Roshni requesting that PW-2 and her brother be taken from PW-3 and sent to Nari Niketan on the allegation that PW-3 had influenced PW-2 to depose against her.

30. The learned counsel for the appellant submits that the learned Trial Court relied upon the testimony of PW-2 to the extent it suited the prosecution, while for other portions relied upon part of the disclosure statement, which itself was contradictory to the testimony of PW-2. The learned counsel for the appellant submits that the prosecution case is contradictory on material aspects and, therefore, wholly unreliable. She submits that while the PW-2 had maintained that the appellants had taken the body of the deceased in a car, the prosecution and the learned Trial Court subsequently relied upon the disclosure statements of the appellants to conclude that the body was transported on a cycle and disposed of thereafter.

31. It is further submitted that the prosecution story regarding conspiracy, is also inherently improbable inasmuch as the appellant and co-accused(s) could not have anticipated the exact time at which the deceased would wake up to use the bathroom, particularly when the prosecution itself alleges that he had been heavily intoxicated. Further, it is highly unlikely that the appellant and co-accused(s) would have remained standing outside the house for an indefinite period, despite being aware that neighbors were sleeping outside the jhuggi and could have noticed their presence, thereby raising suspicion.

32. The learned counsel submits that PW-3 Shakuntala was only a hearsay witness and her testimony suffers from material improvements. She submits that PW-3 was admittedly not an eye witness and her entire testimony was based upon what was allegedly narrated to her by PW-2. She highlights that her testimony suffers from various contradictions regarding the date of her arrival in Delhi; the date of returning to Muwana with PW-2; whether PW-2 was taken in presence or absence of Roshni; and whether any written complaint was submitted to police on 04.08.1996. Several material facts deposed by her before the Court, were absent from her statement under Section 161 of the Cr.P.C., amounting to material improvements. Thus, PW-3‟s testimony was wholly insufficient to corroborate the prosecution case.

33. The learned counsel for the appellant submits that the prosecution failed to establish that the appellant and co-accused(s) were arrested on 19.08.1996 in the manner alleged, inasmuch as there are material contradictions in the testimonies of PW-16, PW-17, PW-19, PW-20, PW- 21 and PW-27 regarding the timing, manner of arrival and departure of the police officials, as well as the accused persons. She submits that while PW-27 deposed that the accused had reached AIIMS to catch a bus, PW- 17 stated that he did not know whether the appellants had come by bus or on foot, whereas PW-20 deposed that the accused had alighted from a bus. She further submits that no incriminating article whatsoever, including any bus ticket, money, purse or wallet, was recovered from the personal search of the accused persons, despite the prosecution alleging that they were travelling from Kusumpur Pahari to Kotla. She submits that these inconsistencies render the prosecution version regarding the alleged apprehension at AIIMS, wholly doubtful and establish that the appellant and co-accused were not arrested in the manner alleged by the prosecution.

34. She submits that the disclosure statements are inadmissible in the present case. To substantiate the submission, she submits that as per the prosecution case, the appellants were apprehended on 19.08.1996 at around 4:30-4:45 p.m., they were arrested around the same time, and within 10-15 minutes thereafter, the appellant as well as others confessed the crime. All this is said to be completed by 5:00-5:15 pm, which seems impossible to be done in such a short span of time. She further submits that no investigation is made by the police with respect to the person whom the appellant and co-convicts were allegedly going to meet when they were apprehended, which establishes that the accused persons have been falsely implicated.

35. She further submits that, independent witnesses PW-6, PW-9 and PW-12, did not support the prosecution version regarding the recovery at the instance of the accused and, more importantly, the divers categorically stated that police had approached them much earlier in the day for removal of a body from the jheel, thereby completely demolishing the prosecution case that the recovery was effected pursuant to disclosure statements of the appellants made after the alleged arrest.

36. Further, she highlights the absence of arrest memo in the present case. She submits that the alleged disclosure statements are inadmissible and incapable of being relied upon.

37. She further submits that the prosecution story that two naalis, which were about 40-45 kgs, were tied to the dead body and dumped together, is highly improbable.

38. The learned counsel for the appellant submits that the prosecution failed to establish beyond reasonable doubt that the skull and bones allegedly recovered from the jheel were those of the deceased. She submits that there is no evidence on record to show in whose custody the alleged skeletal remains remained from the date of recovery till the postmortem examination. She further submits that the DNA report was not supported by any underlying scientific material or corroborative evidence and, therefore, could not have been treated as conclusive proof of identity.

39. Ms. Khanna further submits that the medical evidence itself materially contradicted the prosecution case. She submits that as per PW- 15, the calculated stature of the deceased, on the basis of the recovered femur bone, was approximately 140.[6] cm ± 5 cm, whereas the deceased was stated to be around 5 feet 6 inches in height. She further submits that PW-15 opined that the death had occurred approximately three months prior to the postmortem conducted on 06.09.1996, which was inconsistent with the prosecution timeline regarding the alleged incident. She submits that in view of the absence of a clear chain of custody, lack of corroborative evidence to the DNA report, and the contradictions arising from the medical evidence itself, the identity of the recovered remains remained wholly doubtful.

40. The learned counsel for the appellant submits that the alleged recovery of the skull was highly doubtful and incapable of being relied upon. She submits that PW-10 deposed that he had taken out the head of the body from the jheel along with one cement slab (naali), however, he failed to mention the specific day and date on which the alleged skull was recovered. She further submits that the prosecution failed to establish how the skull allegedly got detached from the rest of the body. Even assuming that the skull had detached naturally, it would ordinarily have floated on to the surface of the water and could have been recovered on 19.08.1996 itself, rather than being subsequently found tied with a third cement slab in the manner alleged by the prosecution. She submits that the prosecution has thus introduced the theory of a third cement slab, only to explain the subsequent recovery of the skull, which admittedly had not been recovered along with the remaining body parts on 19.08.1996.

41. She further submits that there are contradictions even regarding the nature of recovery, inasmuch as, the prosecution alleged recovery of a headless body along with cement slabs and electric wires, whereas PW-6, an independent witness, deposed that only large bones along with cement slabs and a bundle of electric wire were recovered.

42. She submits that while PW-2 alleged that on the alleged date of incident, the body of her father was taken in a car, the disclosure statement alleged that the body was taken on a cycle on the next day. She submits that the learned Trial Court introduced its own opinion by observing that the body might initially have been taken in the dikki of a car or that the accused may have lied regarding transportation on a cycle. She submits that such reasoning, which was never deposed to by PW-2 herself, could not have been used to overcome contradictions in the prosecution case.

43. The learned counsel for the appellant submits that although there were contradictions regarding the date of arrival of PW-3 at Delhi and taking PW-2 back to Muwana, the learned Trial Court brushed aside the contradictions in the testimonies of PW-1, PW-2 and PW-3 and selectively relied upon one part of the testimony of PW-3 to conclude that she arrived in Delhi on 31.07.1996.

44. The learned counsel for the appellant submits that the learned Trial Court failed to consider the appellant‟s statement under Section 313 of the Cr.P.C., wherein he stated that he had neither visited the house of the deceased nor had any relation with Roshni and that he had been picked up by the police from his residence. She submits that the appellant specifically alleged that the police used third-degree methods upon him and obtained disclosure statements, videography and pointing-out memos, under pressure and threat.

45. The learned counsel for the appellant submits that neither motive nor preparation nor commission of the alleged crime was proved and that the prosecution case suffered from material discrepancies in witness testimonies, absence of independent witnesses, inadmissible disclosure statements, inconsistencies regarding recovery, and failure to establish that the recovered body was that of the father of PW-2. She submits that the complete and unbroken chain of evidence excluding every hypothesis of innocence, was not established beyond reasonable doubt and that the learned Trial Court convicted the appellant by discarding material discrepancies and introducing its own reasoning to fill gaps in the

46. The learned counsel places reliance on Raja Khan v State of Chhattisgarh, 2025 INSC 167, to submit that under Section 27 of the Indian Evidence Act, only that portion of the information supplied by an accused which distinctly relates to the fact thereby discovered, is admissible in evidence. She submits that the exact information allegedly furnished by the accused leading to recovery, must be duly proved and mere statements that the accused led the police party to the place of recovery are insufficient.

47. By placing reliance on a judgment of Supreme Court in Caetano Piedade Fernandes and Another v Union Territory of Goa, Daman and Diu, (1997) 1 SCC 707, she submits that the testimony of a child witness is required to be approached with great caution, and where the testimony suffers from serious infirmities, contradictions and improbabilities, affecting the veracity of the statements made, it would not be safe at all to rely on such testimony.

48. She further places reliance upon Vijay Mandal & Ors. v. State of Chhattisgarh, 2025:CGSC:7483-DB, to submit that DNA evidence must be properly documented, collected, packaged and preserved, in accordance with scientific and legal requirements, before it can be treated as admissible and reliable evidence. She submits that in the present case, the prosecution failed to establish the chain of custody and preservation of the alleged bones/body recovered from the jheel and, therefore, the DNA evidence loses its evidentiary sanctity and cannot be safely relied upon.

49. She places reliance upon Rahul v. State, (2023) 1 SCC 83, to submit that where a confession made before the police leads to recovery of any incriminating material, only that limited portion of the statement which distinctly relates to the fact discovered, is admissible under Section 27 of the Indian Evidence Act, and not the entire confessional statement. She further submits that the information leading to discovery of the place of offence or recovery is admissible only to the limited extent contemplated under Section 27 read with Section 8 of the Indian Evidence Act.

SUBMISSIONS OF THE LEARNED COUNSEL ON BEHALF OF APPELLANT MAYA IN CRL. A. 506/2002

50. Mr. Manjit Singh, learned counsel for appellant Maya, while mostly adopting the submissions made by Ms. Isha Khanna in Crl. A. 461/2002 for appellant Saleem, further adds that it is settled law that though conviction can be based on the testimony of a solitary eyewitness, but only if the testimony of that witness is reliable. He submits that PW-2 Neelam is not reliable for the reason being that if the statement of PW-2 is to believed then according to her the dead body was taken away in the dikki of a vehicle/Maruti van, however, as per the disclosure statements of accused persons, the dead body was kept inside the house and after about 24 hours, that is on next night, it was taken away on a bicycle and thrown in the mine. He submits that the prosecution itself did not believe the statement of PW-2 to be true, and instead believed the disclosure statements and recovered the alleged bicycle vide Ex. PW 17/J. If the testimony of the PW-2 was true and believable, then the Maruti Van must have been recovered. Therefore, the same makes the testimony of PW-2 doubtful.

51. He further submits the testimony of PW-2 cannot be relied upon as the learned Trial Court had failed to discharge its duty before recording her testimony. The learned Trial Court did not ask any formal questions from the child witness in order to ascertain that she was free from coercion or tutoring. In this regard, he places reliance on Pradeep v. State of Haryana, 2023 INSC 599.

52. He submits that when the reliability of the testimony of sole witness is not absolute, then the case must be treated as based on circumstantial evidence, and therefore, the motive to commit murder becomes an important factor. He submits that, in the present case, appellant Maya is the sister of appellant Roshni, who is the wife of the deceased, and there is no motive as to why Maya would assist Roshni in committing murder of her husband. If appellant Roshni, as per prosecution, was having illicit relations with appellant Saleem, there is no reason why appellant Maya would want to commit the murder of her sister‟s husband.

53. The learned counsel submits that there is no arrest memo prepared by the IO of the alleged arrest. Therefore, the prosecution has failed to show that the appellant was in police custody while making the alleged disclosure statement. To buttress his contention, he places reliance on Rohit Jangde v State of Chattisgarh, 2026 INSC 162.

54. He submits that only one public witness, that is PW-6, was included while making alleged recoveries, and even PW-6 did not support the prosecution version.

55. He further submits that the prosecution has failed to prove beyond reasonable doubt that the dead body which had been recovered was that of the deceased, as there are doubts regarding the height of the dead body. He submits that in the missing complaint (Ex PW1/A), the height of the deceased was mentioned as 5 feet 6 inches by his wife Roshni, whereas the Post Mortem Report mentioned the dead body being of a person whose height was of less than 5 feet. DNA report was also doubtful as PW-25 Dr GV Rao deposed that he did not bring the file containing the details regarding the test conducted by him. The relations of the persons whose DNA was to be compared with the DNA of the deceased was already revealed to PW-25 in the form of identification card. Therefore, DNA report is not reliable. Reliance is placed on Rahul v. State Of Delhi,

56. He further adds that the time of death is doubtful. As per PW 1/B, time of death is sometimes in the end of June 1996, however the report of Post-Mortem conducted on 06.09.1996 states the time of death is about 3 months ago, which means in the beginning of June.

57. He submits that since the present case is one of murder, the stricter degree of proof is required and the same is not proved beyond a reasonable doubt.

SUBMISSIONS OF THE LEARNED COUNSEL ON BEHALF OF APPELLANT ROSHNI IN CRL. A. 49/2002

58. Ms. Khushboo Nair, learned counsel for the appellant Roshni, submits that the conduct of PW-2 was considerably unnatural, as for about 1.[5] months the child lived a routine life after allegedly witnessing a brutal murder of her own father, living without any signs of trauma and distress, going to school regularly, did not alert her neighbour and friends, and only confided in PW-3, her bua, when she visited the house of PW-2. It is submitted that such unnatural conduct of a witness makes her testimony unreliable. To buttress her contention, she places reliance on Nimai Ghosh v State of Bihar, 2025 INSC 816; Panchhi and Ors. National Commission for Women v State of UP and Ors., (1998) 7 SCC 177; and Chaggan Dame v. The State of Gujarat, 1995 SCC (Cri) 182.

59. She submits that PW-2 claimed to have witnessed assault on her father by the appellants by way of knife and danda blows and mentioned that thereafter her deceased father was dumped in the dikki of a white car, however no „white car‟ was ever recovered by the prosecution to corroborate the statement of the sole eye-witness PW-2. She submits that the same discredits her as a sterling witness and establishes that she was tutored by PW-3, her bua, to falsely implicate the appellants in the present case.

60. She submits that the learned Trial Court erred in explaining the contradictions on behalf of the prosecution and further failed to establish the core of Section 34 of the IPC, since nothing on record is there to prove prior meeting of mind of the accused persons or participation in furtherance of common intention.

61. She submits that the learned Trial Court has erred in passing the judgment by basing the entire case on the disclosure statement of the appellants. She submits that it is well settled that a confession made by a person while in custody of the police is inadmissible in the court of law as per Section 25 and 26 of the Indian Evidence Act.

62. She submits that the whole episode of alleged discovery of the remains of the deceased, was staged by the prosecution.

63. She further submits that due importance to the statement of appellant Roshni and appellant Savitri in their Statements under Section 313 of the Cr.P.C. was not given by the learned Trial Court.

64. The learned counsel for appellant Roshni further submits that the learned Trial Court failed to appreciate the distance between the jhuggis of Saleem, Maya and Savitri, and voluntarily filled the gaps in the prosecution story without even adhering to the fact that no pre planning was proved by the prosecution.

65. She submits that a blind eye is turned on the fact that there are no arrest memos on record which is fatal to the case. She further submits that there is a complete violation in regard to guidelines passed in the case of DK Basu and Anr. v. State of West Bengal and Anr., (1997) 1 SCC 416. She submits that this is a blatant violation of Section 41B of the Cr.P.C., leading to illegal detention along with illegal procedure and violation of Article 21 of the Constitution of India.

66. By placing reliance on Manoj and Ors. v. State of Madhya Pradesh, (2022) 6 SCC 1, she submits that the DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law. She contends that in the present case, no data was placed on record by the prosecution, thereby inferring that the DNA reports are incomplete to establish the case of the prosecution beyond SUBMISSIONS OF THE LEARNED APP FOR THE STATE

67. Mr. Aman Usman, the learned APP, submits that the present case rests upon cogent, consistent and credible chain of evidence, which conclusively establishes the guilt of the accused persons beyond reasonable doubt. He submits that the prosecution has proved the occurrence of events through the testimony of a natural eyewitness, being PW-2 Neelam, duly corroborated by surrounding circumstances, recoveries and scientific evidence. He submits that minor discrepancies are bound to occur when witness depose after a lapse of time and the said discrepancies do not go to the root of the matter and are liable to be ignored.

68. He further submits PW-2 is wholly consistent as a star witness, as opined by learned Trial Court itself, and inspires confidence. He submits that while appreciating the testimony of PW-2 Neelam, Child witness, Court must consider the ordeal faced by a child witness who was compelled to attend Court proceedings repeatedly over a prolonged period and remained constantly under police protection. The learned APP submits that the competence of child witness PW-2 Neelam was duly assessed by the learned Trial Court and not only this, oath was duly administered to her after the Court was fully satisfied regarding her intelligence, rationality and ability to depose truthfully. Therefore, challenge to her competency is devoid of merit. The presence of PW-2 at the place of occurrence is natural and unquestionable since she resides in the same house. Also her narrative regarding the conduct of accused persons, the sequence of assault, and the subsequent manner in which body was disposed, bears intrinsic truth and inspires confidence. He further submits that merely because she deposed against her own mother, it does not render her unreliable, rather carries even greater evidentiary value as it would require extraordinary courage for a child to depose against her own parents.

69. Regarding the conduct of the child post the incident, the learned APP submits that a child who had witnessed her mother and other family members conspiring against and causing injuries to her father, would naturally be overwhelmed by fear, anxiety and insecurity. In such circumstances, it cannot be expected that she would disclose the incident to neighbors, friends or schoolmates. Having witnessed the brutal acts of the accused persons and being dependent upon them, the child was likely to remain silent out of fear for her own safety and due to the absence of any trusted person to whom she could confide.

70. The learned APP further submits that the defence theory alleging that she was tutored by PW-3 Shakuntala, her bua, is unsupported by any evidence and is baseless. He submits that no suggestion was put to PW-3 during her cross-examination that she had tutored PW-2 or intended to usurp the property of the deceased.

71. He further submits that the delay in lodging the FIR stood sufficiently explained on account of fear, pressure and the initial reluctance and inaction of the police authorities.

72. The learned APP further contends that the testimony of PW-3 corroborates the version of PW-2, and the disclosure made by the PW-2 to her bua PW-3 immediately after she went to Muwana, is fully consistent with her deposition before the Court and lends assurance to the

73. He submits that evidence of both independent and official witnesses conclusively establishes that recovery of body was made pursuant to the disclosure statements of accused persons. In this regard, he points out to the testimony of PW-9 Shankar (diver), and submits that it clearly establishes that the dead body was recovered at the instance of accused persons.

74. He further submits that the discrepancies regarding the exact timing of arrest and recovery, are minor, and do not go to the root of the case of the prosecution. It is submitted that the recovery proceedings were duly photographed and videographed, thereby lending further assurance and credibility to the prosecution case and completely negating the allegation of fabrication.

75. The learned APP submits that PW-7 Manjeet has supported the prosecution case by stating that he had written love letters to appellant Roshni on behalf of appellant Saleem and had also read out the letters written by Roshni to Saleem. According to the prosecution, this establishes the relationship between the two and provides the motive for the offence.

76. He further submits that the medical evidence does not contradict the prosecution case in any manner. The body was highly decomposed when the post mortem was conducted on 06.09.1996, as per which, death time was approximately 3 months prior. The FIR was registered on 13.08.1996, where the PW-2 stated that around 1 and ½ months back the incident took place. Thus, if time is calculated from the statement of the minor, it will be around 2 months 20 days or so, which roughly matches with timeline given in the Post Mortem Report. Although the body was highly decomposed and the precise cause of death could not be conclusively determined, the same does not dilute the effect of the direct ocular testimony and surrounding circumstantial evidence.

77. He submits that the arrest and interrogation of the accused persons stand proved through the testimonies of PW-15/SI Dhara Mishra, PW- 17/HC Satish, PW-19/HC Ved Prakash, PW-20/CT Gyan Prakash, and PW-21/Ct Deep Kaur. Pursuant to the disclosure statements of the appellants, the appellants led the police party to Kusumpur Pahari where a headless dead body tied with cement naalis and electric wires was recovered by the diver PW-9/Shanker and was witnessed by PW-6/Maya Devi, independent witness. The entire recovery was photographed and videographed by PW-11/Ravi Sharma, thereby ruling out any possibility of fabrication. He further submits that on 21.08.1996, skull of the deceased was also recovered, which fact stands duly proved through the testimonies of PW-10/Abdul Sattar, PW-19/HC Ved Prakash, and PW- 26/HC Sushil Kumar.

78. The learned APP further submits that the medical and scientific evidence fully supports the prosecution case. He submits that the identity of the deceased stood conclusively established through DNA profiling conducted by PW-25/Dr. G.V. Rao, which connected the recovered remains with the deceased.

79. He further submits that the non-recovery of the weapon of offence or clothes is not fatal to the prosecution case in view of the settled proposition that even in the absence of recovery of the weapon of offence, conviction can safely be based upon reliable ocular testimony.

80. He submits that the divers were immediately summoned after the arrest of the appellants and their disclosures, and the dead body was recovered pursuant to the information supplied by the accused persons. Even assuming that any part of the disclosure statements is held to be inadmissible, the conduct of the accused persons in leading the police party to the place of concealment of the body and facilitating the recovery, remains a relevant circumstance under Section 8 of the Indian Evidence Act. This conduct constitutes an important incriminating circumstance and lends substantial support to the prosecution case.

81. He submits that the alleged discrepancy regarding the mode of transportation of the dead body, is not a material contradiction affecting the prosecution case. Whether the body was transported on a bicycle or in a car/van, does not have any bearing on the guilt of the accused. The learned APP relied upon the findings of the learned Trial Court of the impugned judgment for the same.

82. The learned APP submits that the learned Trial Court has made correct observations in holding the appellants guilty and the findings returned by the learned Trial Court are based upon proper appreciation of the ocular, medical, scientific and circumstantial evidence on record. He submits that the learned Trial Court has rightly relied upon the testimony of PW-2, which stood corroborated by the surrounding circumstances, recovery proceedings, and DNA evidence, and has correctly held that the prosecution had successfully established a complete chain of circumstances pointing towards the guilt of the accused persons beyond

83. The learned APP places reliance on State v. UP v Deoman Upadhayaya, 1960 SCC Online SC 8, to contend that Section 27 of the Indian Evidence Act distinguishes between persons in police custody and those not in custody. It is further contended that for the purposes of Section 27, custody is wider than formal arrest and may exist even where a person has submitted himself to the control of the police. The learned APP submits that the absence of arrest memo is not fatal to the prosecution case. To substantiate this submission, he places reliance upon a judgment of Punjab and Haryana High Court in Anuj Kumar Singh v. Union of India, 2026:PHHC:057291, and contends that an arrest stands effected the moment an individual is under the coercive control of the police authorities. He submits that the time mentioned in the arrest memo is merely a procedural formality and cannot be treated as determinative of the actual time of arrest. He submits, once the accused persons were under police control and not free to depart, they were deemed to be in custody for the purposes of Section 27 of the Indian Evidence Act.

84. By placing reliance on Neelu@Nilesh Koshti v. The State of Madhya Pradesh, 2026 SCC OnLine SC 278, he submits that Section 27 is a proviso to Sections 25 and 26 of the Indian Evidence Act. He submits that the „fact discovered‟ embraces not merely the object recovered, but also the place from which it is produced, and the knowledge of the accused as to its existence. He submits that the actual discovery of the body from the exact location disclosed by the appellant serves as a guarantee of the truthfulness of the information supplied.

85. He submits that the impugned judgment and order, therefore, deserve no interference from this Court.

ANALYSIS AND REASONING

86. We have considered the submissions made by the learned counsels of all the appellants and the learned APP for the State and perused the record of the learned Trial Court.

87. The case of the prosecution rests primarily on two circumstances:

(i) the testimony of PW-2 Ms. Neelam, daughter of the deceased, alleged to be the sole alleged eyewitness to the incident; and

(ii) the alleged disclosure statements of the appellants and consequent recoveries of the skeletal remains of the deceased from the jheel at Kusumpur Pahari.

88. We shall now consider the aforesaid circumstances relied upon by the prosecution for bringing home the guilt of the appellants.

89. Before we consider the testimony of PW-2 Neelam, we must take note of the fact that on the date of the alleged incident, her age would have been around 10 years, and when her testimony was recorded by the learned Trial Court, she was aged around 12 years.

90. The law with respect to the testimony of a child witness is well settled. In Pradeep v. State of Haryana (supra), the Supreme Court held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness and apply its mind to the question whether there is a possibility of the child witness being tutored. The Court also emphasized that at the time of recording of the evidence of the child witness, the Court must follow the mandate of Section 4 of the Oath Act, 1969 and Section 118 of the Indian Evidence Act, 1872.

91. For the sake of convenience, we first reproduce the law as explained by the Supreme Court in the above judgment:

8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.

9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.”

92. In State of Rajasthan v. Chatra, (2025) 8 SCC 613, the Supreme Court reiterated and culled out the principles applicable for assessing the testimony of a child witness as under:

93. In the present case, at the outset, we would note that unlike in Pradeep vs. State of Haryana (supra) where at least some questions had been put to the child witness by the learned Trial Court to determine if she was capable of understanding the questions put to her, the learned Trial Court, in spite of the tender age of PW-2, did not put even a single question to the child witness to decipher whether she was capable of understanding the questions put to her and give rational answers to the same, and as to whether she was capable of understanding the importance of speaking the truth. Therefore, even assuming that the learned Trial Court was satisfied that the witness, not being under 12 years of age, could be administered oath as she understood the meaning thereof, there was no compliance with the requirement of Section 118 of the Indian Evidence Act.

94. In spite of the above, we shall now consider the testimony of the child witness PW-2 to decipher if we can rely on the same to hold the conviction of the appellants herein. PW-2 Kumari Neelam in her testimony states that the appellant Saleem @ Kalua used to visit her mother-appellant Roshni, on which the deceased used to get angry. He also used to quarrel with the appellant Roshni on this issue. PW-2 states that one month before the date of the incident, the appellant Roshni asked the appellant Kalua to bring some intoxicating medicine, which she gave to the deceased in the milk. The deceased used to sleep after drinking the said milk. This continued for about one month till the day of the incident. PW-2 further states that on the night of the incident, that was a Friday, the deceased woke up during the night time for urinating. As she was having a headache, she could not sleep though appellant Roshni thought that she was sleeping. Appellant Roshni bolted the shop/clinic of the father, where they were sleeping, from outside. She states that when the deceased was going towards the jhuggi from the bathroom side, the appellant Roshni pushed him from the behind, due to which the head of the deceased struck against the wall and he fell down on the ground. The appellant Roshni immediately called other appellants. The other appellants were armed with danda and appellant Kalua was also having a knife apart from a danda. The appellant Kalua put a cloth in the mouth of the deceased and all four accused persons gave danda blows on the person of the deceased. The appellant Kalua also inflected the knife blow on the chest and stomach of the deceased. PW-2 states that thereafter, appellant Kalua brought one vehicle and told that it was 3 o‟clock in the night. He told the others “jaldi se gaadi ki dikki mein gero”. PW-2 states that thereafter appellant Kalua took out the shirt of the deceased and appellant Roshni cleared the blood lying on the floor with the said shirt. She states that the deceased was wearing white vest and black pant on his body. She states that thereafter four accused persons put the deceased in the dikki of the vehicle and kept the dandas and knife and also the shirt of the deceased in the vehicle. She states that all the four accused sat in the vehicle and went somewhere. She however is not aware where they went. She states that she had seen the entire incident from the jaali of the bricks of the room where she was sleeping. She further states that one bulb was glowing in balli and therefore, there was light in which she could see the incident. She states that after some time all the four accused persons came back and started talking inside her jhuggi. After some time, accused Savitri (Nani of PW-2) and appellant Maya (Mausi of PW-2) went to their jhuggis, while appellant Kalua and appellant Roshni slept in her jhuggi.

95. PW-1 SI Akhlesh Yadav admits that he did not note the position of the light poll (balli) and bulb in the rough site plan prepared by him. He further admits that he also did not measure the height of the alleged jaali from which PW-2 would have seen the incident. These were the important facts that ought to have been noted down in the site plan, if any credence is to be placed on the testimony of PW-2. Whether PW-2 could indeed have seen the entire incident lying on a cot in her jhuggi/room/clinic is most vital to determine whether she can be safely relied upon.

96. Importantly, PW-2 states that when she woke up, she enquired from the appellant Roshni about the whereabouts of the deceased and she stated that he has gone to Badarpur. Where was the occasion to enquire, if she had seen the incident herself?

97. In her cross-examination, she further states that she did not scream or shout when her mother pushed the deceased, as she feared that the mother would also beat her up. She further states that on the next day, she went to school at 7.30 a.m. and came back from the school at 1 p.m. Importantly, she does not even then inform about the incident to any other person, but when her bua (PW-3 Ms.Shakuntla) came to the house of the deceased on 31.07.1996, she decided to go with PW-3. Even to PW-3, she claims to have informed of the incident only on 03.08.1996.

98. On being asked if there was another door to the room where she was sleeping, she admitted the same, however, adds that it was jammed. She, on further cross-examination, admitted that patients used to come to see her father, who was a doctor, from the said door. Therefore, she tries to explain away the suggestion that she could easily have called for help by moving out from the other door towards the street.

99. She also states that she knew that her mother used to give intoxicating medicine in the milk to the deceased. She states that she, however, never told the deceased about the same. Why not?

100. She stuck to the version that the body of the deceased was removed from the jhuggi on the vehicle/Maruti Van brought by the appellant Kalua. Even the prosecution does not believe this version of hers and, in fact, deems it proper to rather accept the version of the appellants in their alleged disclosure statements that they removed the body of the deceased on the next day on a bicycle.

101. She also admitted that in the summer season, they used to sleep in the courtyard and neighbours used to sleep on the roadside outside the courtyard of the jhuggi. Why were they sleeping in the room on the fateful night and how come no other neighbour woke up when so much commotion must have taken place with a vehicle coming in the middle of the night and body being dumped in the vehicle to be taken away, has not been explained. No one also saw the appellants, who are claimed to have been waiting outside the jhuggi of the deceased armed with dandas. This again makes her version doubtful.

102. On the presence of the light, she again stuck to the statement that there was light present in the house. In fact, she further goes to state that the jhuggi also had an electricity meter. We highlight this fact, as PW-3 Shakuntla in her statement had admitted that there was no electricity meter in the jhuggi.

103. From the above analysis of the deposition of PW-2, she does not come out to be a reliable witness for more than one reason. The very fact that she could see the entire incident unfolding before her eyes from the jaali of the brick wall while sleeping in the room, is highly doubtful. The incident as described by her has not happened in one direction, but in multiple directions; a part of it was in the courtyard of the house, while the other on the road outside the house when the car is brought to remove the body of the deceased. She has further tried to improve her statement by even going to the extent of claiming that there was an electricity meter installed in the house. Moreover, her conduct pre and post the incident is also very unnatural. Though she states that she knew that her motherappellant Roshni used to give intoxicating substance to the deceased by mixing it in his milk and that she had been doing the same since from at least one month before the incident, yet she does not inform the same to her father, the deceased. Even post the incident, she first enquires from the appellant Roshni about the whereabouts of her father, though she claims to have witnessed the entire incident in the night. She further goes to school the next morning in the normal time but does not inform any friend, teacher or neighbour about the gruesome murder of the deceased. She acts normally till PW-3 (sister of the deceased) comes to the house of the deceased on 31.07.1996. She does not tell PW-3 about the incident even then. She in fact goes with her to her village and informs her only on 03.08.1996. This conduct, even from a child, is completely unnatural especially when a child has seen gruesome murder of her father at the hands of her mother and others unfold in front of her eyes.

104. In Nimai Ghosh (supra), the Supreme Court laid emphasis on the unnatural conduct of an alleged eye witness, to disbelieve the testimony of such a witness. The Court observed that the act of said witness not to inform about the incident to others was unnatural and even the theory of being under fear, could not be accepted. We quote from the judgment as under:

105. The silence of PW-2 till 03.08.1996 and her allegedly disclosing the incident to PW-3 only when she was in custody of PW-3 for some days, raises a doubt of her being tutored by PW-3. Though the learned Trial Court has held that the consistent version of PW-2 against her own mother, rules out tutoring, in our opinion, the pre and post incident conduct of PW-2 does not completely rule out such possibility.

106. Once the testimony of PW-2 is held to be not reliable, we are left only with the alleged disclosure statements made by the appellants and the consequent recovery of the skeleton bones of the deceased from the jheel at their behest.

107. Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26 of the Indian Evidence Act, and states that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, “in the custody of a police-officer”, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Therefore, when consequent to a confession or otherwise made by the accused while in custody of the police officer, any fact is discovered, the same may be proved in evidence. The first pre-condition of the same is therefore for the person to be in custody of the police officer.

108. In Raja Khan (supra), the Supreme Court held as under:

109. In Ramanand @ Nandlal Bharti v. State of Uttar Pradesh (2023) 16 SCC 510, the Supreme Court had reiterated the essential for admissibility of the evidence under Section 27 of the Indian Evidence Act, as under:

110. Recently, in Anand Jakkappa Pujari @ Gaddadar v. The State of Karnataka, 2026 INSC 417, the Supreme Court has held that Section 27 of the Indian Evidence Act is in the nature of an exception to the general rule on non-admissibility of confessions made by the accused. It, therefore, has to be strictly construed. The Court held as under:–

111. Applying the above test to the facts of the present case, we first have to consider whether the alleged disclosure statements were made while the appellants were in custody, and whether the skeleton remains of the deceased recovered on the pointing of the appellants.

112. In the present case, the timing of the arrest, disclosures made by the appellants, and the consequent recovery of the skeleton remains, are so unnatural that they cannot be believed. Through the testimonies of PW-16 SI Dara Mishra, PW-17 HC Satish Chander, PW-19 HC Ved Prakash, PW-20 Ct. Gian Prakash, PW-21 Ct. Deep Kaur and PW-27 Inspector Diwan Chand, the prosecution wants us to believe that the accused were arrested from near Safdarjung Hospital between 4.30 and 4.45 p.m, however, there is no Arrest Memo of the accused persons on record. Apart from this, there is also no public witness of the alleged disclosures made by them consequent upon their arrest. Though the learned Trial Court tries to brush aside the same by stating that the public witness do not generally offer themselves to such police proceedings, in the present case, PW-21 Ct. Deep Kaur and even PW-27 Inspector Diwan Chand, admit that no effort was made to join any public witness in the proceedings of arrest or the recording of the alleged disclosures made by the appellants.

113. The entire episode of seeing the appellants approaching, their apprehension, arrest, and disclosures, takes only about 15 minutes.

114. Further, while it is the case of the prosecution that, on the disclosure of the accused that the body of the deceased was thrown by them in the jheel, PW-17 HC Satish Chander went to call the divers, PW-

9 Shankar states that it was the Inspector Diwan Chand who came to call him and that too, around noon time, that is, even before the alleged arrest of the appellants. This is reiterated by PW-12 Manohar Lal, the elder brother of PW-9 Shankar. This discrepancy of the timing cannot be brushed aside in the present case as, if the police already knew that the skeleton remains of the deceased can be found in the jheel, the entire story of the alleged disclosures and the recovery being made at the pointing of the appellants would become inadmissible in evidence and it is held to be so in the facts of the present case.

115. The prosecution has further relied upon the statement of PW-6 Maya Devi as an alleged independent witness to the discovery of the skeleton remains of the deceased at the behest of the appellants. She, however, does not support the same, and though she can be stated to be witness to the removal of the skeleton remains of the deceased from the jheel, she does not support the case of the prosecution that it was at the pointing of the accused. The case of the prosecution on this aspect, therefore, also fails.

116. Though the learned counsels for the appellants have vehemently argued that the DNA Report, in absence of the supporting material, cannot be relied upon, and that the postmortem report of the skeleton remains, given the discrepancies in the height, does not conclusively establish that the same belongs to the deceased, we need not dwell any further on the same inasmuch as, according to us, the prosecution has failed to bring home the guilt of the appellants in the alleged crime beyond the

117. The claim of the prosecution that the appellant Saleem@ Kalua had the name of the appellant Roshani written on his chest through cigarette burns, and that he used to write love letters to appellant Roshni through PW-7 Manjeet, though raise a doubt about the involvement of Roshini and Kalua in the disappearance of the deceased, are not sufficient to hold them guilty of having committed the murder of the deceased and the same does not prove the case of the prosecution beyond reasonable doubt.

118. It has been repeatedly held that if the case of the prosecution is to be based on circumstantial evidence, each of such circumstance must be duly proved and should lead to only one conclusion, that is, of the guilt of the accused. In this regard, we place reliance on the well celebrated judgment of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, wherein the Supreme Court culled out the five essential principles which must be satisfied for circumstantial evidence to conclusively establish the guilt of the accused, as under: “"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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.”

119. In the present case, by the above circumstance, even if we are to believe that the appellant Saleem @ Kalua had an illicit relationship with the appellant Roshani, the same cannot lead to the conclusion that they have committed the murder of the deceased.

120. Even otherwise, this evidence is insufficient as far as the other appellants are concerned, especially given the facts that there were discrepancies in the statement of PW-2 on the distance between the jhuggi of the deceased and the appellants Maya and Savitri. Further, their presence at the spot though the incident even as per PW-2‟s testimony could not have been pre-planned as to the timing, is highly doubtful. According to PW-2, the incident took place when the deceased got up from his sleep to go for urination. Therefore, the other appellants could not have predicted the time of the offence. No one else noticing them, though they are alleged to be waiting in preparedness armed with dandas on the street, also casts a doubt on the case of the prosecution.

121. The learned Trial Court has also not given any cogent reason for disbelieving the testimonies of DW-1 Sri Chand and DW-2 Satish, who had deposed that the appellant Maya had been picked up from her village on 12/13.08.1996, and she had not visited Delhi for a substantial period before that day. Even PW-2 Neelam had admitted that appellant Maya used to visit Delhi only to purchase medicines and was otherwise residing in her own village.

122. Given the above circumstances, we are unable to uphold the conviction of the appellants on the charges framed against them. We accordingly set aside their conviction and hold that the prosecution was unable to prove the charge against them beyond reasonable doubt.

123. The Impugned Judgment dated 30.03.2002 and the order on sentence dated 05.04.2002 passed by the learned Trial Court, are hereby set aside.

124. The appeals are allowed in the above terms.

125. The personal bonds and the sureties of the appellants are also discharged.

126. A copy of this judgment be communicated to the learned Trial Court and the concerned Jail Superintendent, for necessary information and compliance.

NAVIN CHAWLA, J RAVINDER DUDEJA, J JULY 2, 2026/Arya/pb