In the Hon’ble Court of Sh. Ramesh Kumar-II, Ld.

ASJ/SFTC-2(CENTRAL),
Court Room No. 136, Tiz Hazari Court, Delhi-110054

IN THE MATTER OF:

State V/s Arvind Kumar S/o Om Prakash
FIR No.: 222/2012
U/s: 363/366-A/120-B/376(2)(g)/
302/200-A/34 IPC
PS: Burari, Delhi.

NDOH: 29.01.2018

Witten Submission/Argument on behalf

of the accused Arvind Kumar S/o Om Prakash.

Hon’ble Your Honour,

Most Respectfully Showeth:

1. That, the story of the prosecution is based on the complaint filed by Sh. Satpal
bearing FIR No.222/2012 at, PS- Burari, Delhi u/s 363 IPC alleged that “His
daughter Aarti Mathur, aged 16 years who on 10.8.2012 at 5:00 in the evening
left the house by informing to one of our neighbour that she is going to meet
her friend and inform her mother accordingly. She did not return home till
now as I have search till now but could not found. Her descriptions are as
follow: Age: 16 Years, Height: 5’’.1’, colour; Wheatish, face: Oval, Body: thin.
She was wearing Blue Jeans Pent, white top and black sandal.

2. That, later on the Police had arrested the accused persons and alleged that
they have kidnapped & killed the victim Aarti Mathur and also alleged many
other allegations including gang rape.

3. That, it is submitted that it is well settled law that in the case of circumstantial
murder, the case of the prosecution shall be beyond the doubt, but in the case
inhand the Identification of dead body is doubtful on the basis of Age,
because as per prosecution case documents Ex.PW-33/A, Ex.PW-33/C,
Ex.PW-33/D, Ex.PW-33/E, Ex.PW-33/F the age of the deceased is 16 years,
but as per very important and reliable document i.e. Post-mortem Report
Ex.PW-29/G the age of the unknown dead body (deceased) is about 30 years,
and as per the Punchnama etc. exhibited as Ex.PW-25/A, Ex.PW-25/B,
Ex.PW-29/A, Ex.PW-29/B, Ex.PW-29/C, Ex.PW-29/D, Ex.PW-29/E, Ex.PW-
29/F, the age of the unknown dead body (deceased) is 25-30 years. It is
submitted that PW-29 Dr. Ram Niwas who had conducted the post-mortem
 has stated in his chief examination that –“the age of the deceased appeared
to be in between 20-30 years.” He also admitted that –“it is correct that the
dead body appeared to be of an Adult female. Since the body
decomposed, no symptoms of sexual assault could be ascertained.” It is
also submitted that PW- 31: Ct. Surender is a witness from Bareilly police
who took out the unknown dead body of the deceased from Nala and he in his
cross examination has also accepted that “Dead body of unknown appears to
be 20-25 years. It proves that the alleged dead body does not belongs to
victim Aarti.

4. That, it is also submitted that the Identification of dead body is also

doubtful on the basis of height, because as per prosecution case documents
Ex.PW-33/A, Ex.PW-33/C, Ex.PW-33/D, Ex.PW-33/E, Ex.PW-33/F the
height of victim Aarti was 5.1 fit (155 CM), but as per very important and
reliable document i.e. Post-mortem Report and Punchnama etc. exhibited as
Ex.PW-25/A, Ex.PW-25/B, Ex.PW-29/A, Ex.PW-29/B, Ex.PW-29/C, Ex.PW-
29/D, Ex.PW-29/E, Ex.PW-29/F, Ex.PW-29/G the height of the unknown
dead body (deceased) is 150 CM, which is about 5.5 CM less from the height of
Missing Aarti. It also proves that the alleged dead body does not belongs to
victim Aarti.

5. That, it is also submitted that the time of alleged murder is also doubtful on
the basis of time of Murder/Death alleged Aarti. That as per the
prosecution story, the murder was committed on 20.08.2012. But, as per
the Post-mortem Report exhibited as Ex.PW-29/G, which was conducted on
28.08.2012, the time of death of alleged victim was in between 4 to 8 days. It
means the maximum possibility of time of death of the alleged Aarti is before 6
days of the post-mortem i.e. the alleged Aarti was died on 22.08.2012. It also
proves that the alleged dead body does not belongs to victim Aarti.

6. That, it is further submitted that the PW-36 Insp. Ramesh Kumar and PW-18
Sh. Satpal deposed before this Hon’ble Court that the articles of alleged dead
body of victim Aarti was handed over by the Constable Clark Daya Ram Singh
(P.N.O. No. 792590882) to the PW-36 Insp. Ramesh Kumar in the presence of
PW-18 Sh. Satpal. PW-36 Insp. Ramesh Kumar also further deposed before this
Hon’ble Court that the articles of alleged dead body of victim Aarti was handed
over by the Constable Clark Daya Ram Singh (P.N.O. No. 792590882) to the
PW-36 Insp. Ramesh Kumar in sealed condition (2 nd Para, Page 2, Dated:
 17.08.2016) and the same has been resealed by the PW-36 Insp. Ramesh
Kumar vide Document Ex.PW18/I. But Document Ex.PW18/I shows that the
articles of alleged dead body of victim Aarti was handed over by the
Constable Clark Daya Ram Singh (P.N.O. No. 792590882) to the PW-36
Insp. Ramesh Kumar in seal broken condition. It also creates a strong
doubt about the truth of whole the prosecution story and makes it
unbelievable.

7. That, as per the prosecution case vide documents Ex.PW-33/A, Ex.PW-33/C,

Ex.PW-33/D, Ex.PW-33/E & Ex.PW-33/F the alleged victim Aarti was
wearing “White Top” on time of alleged missing, but on the time of
recovery of alleged dead body of victim Aarti vide documents Ex.PW-
25/A, Ex.PW-25/B, Ex.PW-29/A, Ex.PW-29/B, Ex.PW-29/C, Ex.PW-29/D,
Ex.PW-29/E, Ex.PW-29/F, Ex.PW-29/G she was wearing “One top of Green
Colour”. PW-18 Satpal had been admitted in his Cross Examination Dated:
15.09.2015 that “it is correct that the clothes which were recovered
alongwith dead body of deceased were not same clothes, which the
deceased was wearing when she went missing” he also stated the that I
never stated to the police during investigation that Aarti was wearing a
top of green colour and black pant when she went missing. PW-18 Satpal
further deposed that-“It is correct that I identified the body of Aarti on the
basis of clothes which were on the body. (Vol. The face had been distorted
could not be identified. PW-18 Sh. Satpal also deposed in his Cross
examination dated 14.09.2015 that “I had also seen her cloths on that day
before I left for my work she was wearing Black Jeans and “White Top”. Not
only this, PW-18 Sh. Satpal deliberately deposed before this Hon’ble
Court that alleged Aarti was wearing “White Top” on the time of missing
(6th Line, 3rd Page, Dated: 03.09.2015). It also creates a strong doubt
about the truth of whole the prosecution story and makes it
unbelievable.

8. That, as per the FIR & Rukka itself the alleged Aarti left her home by
stating her Parosan that she is going to meet with her Saheli. By this fact
the alleged Parosan is the last witness, who see the alleged victim. But
the prosecution is failed to produce the noted above Parosan, who is the
Star Witness of the case. Not only this, PW-18 Sh. Satpal did not informed
the name and address of said neighbour in his Cross examination Dated:
 14.09.2015. Due to the non-production of last seen witness, the last seen
theory is not established in any manner.

9. That, it is also submitted that DNA Report is also not established that the
alleged dead body belongs to victim Aarti. It also creates a strong doubt
about the truth of whole the prosecution story and makes it
unbelievable.

10. That, it is also submitted that in the present case, the circumstantial evidences
are not completing Chain of Circumstances.

11. That, the Hon’ble Supreme Court of India has held in case of Hatti Singh V/s.
State of Haryana{ (2007)12 SCC 471} that-“The identification of the dead
body is itself doubtful as the colour of the clothes, the basis for
identification, as disclosed in the FIR and the evidence of the
investigation officer in his inquest report, were different.”

12. That, the Hon’ble Supreme Court of India has held in case of Bodhraj @
Bodha & Anr V/s State of J & K {(2002) 8 SCC 45} that -“In the aforesaid
manner the basic links in the chain of circumstances viz. Identification of
the dead body is doubtful, subsequent links formed on basis of last seen
theory is also lose force hence all the accused person should be entitled
for benefit of doubt.”

13. That, the Hon’ble Supreme Court of India has held in case of Shayamal Shah &
Anr V/s State of WB {(2014) 12 SCC 321} that -“Link in the chain of event
must be so complete as to leave no room for any other hypothesis.

14. That, the Hon’ble High Court of Delhi has recently held in case of Subash V/s
State (CRL. Appeal No. 247/2000) (Decided on 19.01.2018) that:

91. The murder of three persons in the „Personal Point‟ case attracted
considerable media attention when it happened in 1996. The details of
the investigation, to which the media was privy, shaped public
perception about the guilt of those put on trial. Two decades later, when
that perception is not borne out, it invites a reflection on the criminal
justice process. Courts must test the evidence gathered during
investigation in the calm interiors of court halls, uninfluenced by the
discussions in the media. Objective criteria, evolved over the years and
fine tuned by judicial precedents, are applied by the Court to evaluate
 the credibility of the prosecution‟s case and the defence of the accused.
Not infrequently, the Court disagrees with the prosecution about the
guilt of those put on trial. This is because, as the Supreme Court pointed
out long ago in Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC
159, if a murder is “a particularly cruel and revolting one”, then “for that
reason it will be necessary to examine the evidence with more than
ordinary care lest the shocking nature of the crime induce an instinctive
reaction against a dispassionate judicial scrutiny of the facts and law”.

92. Also, as cautioned in Akhilesh Hajam v. State of Bihar 1995 Supp (3) SCC
357, “though it appears to us that in all probability the appellant may be
the culprit but probabilities and moral convictions have no place or any
role to play to convict a person in the absence of legal evidence. There is
a long distance to be travelled between the expression “may be” and
“must be”. However strong emotional considerations may be, but the
same cannot take the place of proof.”

15. Submitted Please.

PRAYER
It is, therefore, most kindly prayed to this Hon’ble Court that the accused
Arvind S/o Sh. Om Prakash may kindly be acquitted from all the charges in
interest of justice.

Any other or further relief which this Hon’ble Trial Court may deem fit
and proper in the facts and circumstances of this case may also be granted in
favour of the accused Arvind S/o Sh. Om Prakash.

Place: Delhi. Applicant / Accused

Dated: 20.01.2018 (in J/C)

(Arvind Kumar S/o Om Prakash)

Thorough

Counsel
(Karan Pal Singh)
Advocate
Chamber: C-184, C.L.Joseph Block,
Tis Hazari Court, Delhi-110054

Mobile No.: 9250120058