Delhi High Court
Kamal Kishore & Anr. vs State Of Delhi on 18 July, 2014
Author: Sunita Gupta
Bench: Kailash Gambhir, Sunita Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18th July, 2014
+ CRL.A. 77/2000
KAMAL KISHORE & ANR. ..... Appellant
Through Mr. Anurag Jain, Advocate
versus
STATE OF DELHI ..... Respondent
Through Ms. Richa Kapoor, APP along
with Mr. Rakesh Sangwan,
SHO, Vivek Vihar
%
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. Challenge in this appeal is to the judgment dated 22nd January, 2000 and order on sentence dated 27th January, 2000 passed by learned Additional Sessions Judge, Shahdara, Delhi in Sessions Case No.58/1998 arising out of FIR No.62/98, PS Vivek Vihar whereby the appellants were held guilty of offence u/s 302/34 IPC and u/s 27 of the Arms Act and were sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo RI for 15 days for offence u/s 302/34 IPC. They Crl. A. No. 77/2000 Page 1 of 30 were also sentenced to undergo Rigorous Imprisonment for a period of three years with a fine of Rs.100 each, in default to undergo 10 days RI for the offence under Section 27 of the Arms Act.
2. Prosecution case emanates from the fact that the deceased Keemti Lal Kapoor was doing the business of property dealer at 28/8, Gali No. 15, Vishwas Nagar, Delhi. Opposite his shop, there was a shop of the appellant Kamal Kishore who was doing the business of electronics. Appellant Jai Bhagwan also used to sit with Kamal Kishore at his electronic shop. Kamal Kishore had extended the shop unauthorizedly. Complaints were made by the deceased Keemti Lal Kapoor to MCD and DCP Office which infuriated the appellant, as a consequence of which on 16th March, 1998, he visited the office of deceased Keemti Lal Kapoor twice but he was not available on both the occasions. At about 5:45 PM, both the accused came to the shop of Keemti Lal Kapoor and inflicted indiscriminate knife blows as a result of which Keemti Lal Kapoor succumbed to injuries. Information was sent to PCR who removed the injured to the hospital where he was declared brought dead. Sanjay Kumar, an employee of Keemti Lal Kapoor met Inspector B.R. Solanki in the hospital and Crl. A. No. 77/2000 Page 2 of 30 gave his statement which resulted in registration of FIR against the appellants. On the next day, both the appellants were arrested. Their blood stained clothes were seized and in pursuance to the disclosure statements made by them, two knives were recovered which were sent to FSL and it was opined that the knives bore same blood group as that of the deceased. Charge sheet for offence under Section 302/34 IPC was submitted against the appellants. Charge for offence under Section 302/34 IPC and u/s 25/27 of Arms Act was framed against both the appellants to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution examined as many as 22 witnesses. All the incriminating evidence was put to the accused persons while recording their statement under Section 313 Cr.P.C. in which they denied the case of prosecution and alleged false implication in this case. They also examined two witnesses in their defence.
4. Vide impugned judgment dated 22nd January, 2000 and 27th January, 2000, both the appellants were convicted and sentenced as mentioned above. Feeling aggrieved, the present appeal has been preferred.
Crl. A. No. 77/2000 Page 3 of 30
5. During the pendency of the appeal, appellant Jai Bhagwan expired, as such, proceedings stands abated against him.
6. We have heard Sh. Anurag Jain, Advocate for the appellant- Kamal Kishore and Ms. Richa Kapoor, learned Additional Public Prosecutor for State and have perused the record.
7. It was submitted by the learned counsel for the appellant that prosecution case was based on the eye witness account of the incident, motive, recovery of blood stained clothes of the accused and weapon of offence. However, as regards eye-witnesses, prosecution had examined PW2 Amarpal and PW4 Sanjay Kumar. Both these witnesses have not supported the case of prosecution at all. As regards the motive, it was submitted that by examining PW1 Sonu Kaushal, prosecution has tried to set up a case that unauthorized construction was raised by Kamal Kishore in his shop which resulted in various complaints by Keemti Lal Kapoor to MCD and DCP, therefore, the appellant committed murder of Keemti Lal Kapoor. However, PW1 Sonu Kaushal admitted that he never accompanied Keemti Lal Kapoor either to the office of MCD or DCP. No evidence has been collected by the prosecution to prove that unauthorized Crl. A. No. 77/2000 Page 4 of 30 construction was raised by Kamal Kishore in his shop or any complaint was made by Keemti Lal Kapoor to any of the authorities. Rather it was submitted that Sonu Kaushal has admitted in his cross- examination that prior to the date of incident, he did not witness any quarrel taking place between the deceased and the accused persons. As such, the motive to commit the crime is not proved. It was further urged that Sonu Kaushal also tried to reflect on the conduct of the appellants for submitting that on the date of incident, accused Kamal Kishore had come to the shop of Keemti Lal Kapoor in the morning but Keemti Lal Kapoor was not present at the shop, therefore, he again came at about 4:00/4:30 PM and again enquired from him about the whereabouts of Keemti Lal Kapoor. While going, he threatened to finish Keemti Lal Kapoor on that day. It was submitted that the witness has given an exaggerated version in the Court and reference was made to certain improvements made by him in his statement made before the Court and the statement made under Section 161 Cr.P.C. It was submitted that in view of the improvements made by the witness in his deposition before the Court, no reliance can be placed in regard to this part of his testimony. Moreover, PW2 Amar Crl. A. No. 77/2000 Page 5 of 30 Pal @ Bunty and PW4 Sanjay Kumar also claim to be employees of Keemti Lal Kapoor and as per their version, they were at the shop of Keemti Lal Kapoor. However, none of these witnesses have deposed about the visits of appellants at the shop of Keemti Lal Kapoor on 16th March, 1998 or threat administered by them. Sonu Kaushal also does not depose about the presence of PW2 and PW4 at the shop. Under the circumstances, it was submitted that neither the previous conduct of the appellant resulting in the incident was proved nor motive to commit crime, which was required to be proved keeping in view the fact that eye witnesses have not supported the case of prosecution and therefore, case of prosecution rests on circumstantial evidence.
8. It was further submitted that as regards the recovery of blood stained clothes and recovery of weapon of offence, there is no independent witness to the recovery. There is material contradiction in the testimony of the police officials. Moreover, although the incident had taken place on 16th March, 1998, the accused were arrested on 17th March, 1998 and it is highly improbable that the accused persons would continue to wear blood stained clothes. Even as regards recovery of knife, it was submitted that the same is highly Crl. A. No. 77/2000 Page 6 of 30 doubtful as there is no independent witness to the recovery. Moreover, PW9 who had reached the spot on being informed about the incident has deposed in cross-examination that he saw two knives lying outside the shop. If the knives were already lying outside the shop, where was the question of their recovery at the instance of accused on the next day?
9. Lastly, it was submitted that the police officials have tried to depose that on 17th March, 1998, both the accused were apprehended by them and thereafter, at their instance, recovery of weapon of offence was effected but DW2 who was the driver of the official gypsy, produced the log book which nowhere reflects the presence of the police officials at the place as narrated by them in their statements. Under the circumstances, it was submitted that prosecution has failed to bring home the guilt of the accused beyond reasonable doubt and the accused is entitled to be acquitted.
10. Per contra, it was submitted by Ms. Richa Kapoor, learned Additional Public Prosecutor for the State that immediately after the incident, FIR was recorded on the statement of PW4 Sanjay Kumar, employee of deceased in which he has narrated the entire incident Crl. A. No. 77/2000 Page 7 of 30 with sufficient details and also specified the role of both the appellants. At that juncture, there was no possibility of any fabrication or manipulation. During the course of trial, the witnesses may have been won over and, therefore, they chose not to support the case of prosecution. Immediately, on the next day of the incident, both the accused were apprehended in their blood stained clothes. Since, they had escaped from the spot, therefore, they might not have got a chance to change their clothes and, therefore, it cannot be said that it was improbable for the appellants to keep wearing the same blood stained clothes. Further, at their instance, the weapon of offence were recovered which were sent to FSL and as per the report of FSL, both the knives were having blood which matched with the blood group of deceased. The motive to commit crime stands duly established from the testimony of PW1 that since deceased was making complaints against unauthorized construction raised by accused Kamal Kishore to various authorities. Infuriated by this behaviour of Keemti Lal Kapoor, the appellants, in furtherance to their common intention, gave indiscriminate knife blows resulting in his death. As regards variation pointed out by learned counsel for the Crl. A. No. 77/2000 Page 8 of 30 appellants in his testimony, it was submitted that there is no exaggeration or improvement, only there is slight variation regarding the wordings of the threat given by the appellants, which cannot be termed to be an improvement. It was submitted that the impugned judgment does not suffer from any infirmity which calls for interference. As such, the appeal is liable to be dismissed.
11. We have given our considerable thoughts to the respective submissions of learned counsel for the parties and have carefully perused the record.
12. It is an undisputed case of the parties that Keemti Lal Kapoor was running business of property dealer at 28/8, Gali No. 15, Vishwas Nagar, Delhi opposite the shop of appellant Kamal Kishore who was running the business of electronics. On 16th March, 1998 when Keemti Lal Kapoor was present at his shop, he was given knife blows. PW9 Pawan Kumar was informed by a child regarding stabbing of Keemti Lal Kapoor on which he went to his shop and found Keemti Lal lying on the ground in his shop drenched in blood. PCR was informed who reached the spot and removed the injured to SDN hospital. PW7 Dr. Tula Mishra examined Keemti Lal Kapoor Crl. A. No. 77/2000 Page 9 of 30 and prepared his MLC Ex.PW7/A and declared him to be „brought dead‟.
13. Post mortem on the dead body of deceased was conducted by PW15 Dr. K.Goel on 17th March, 1998, who, on examination, found following injuries:-
External Injuries:-
1. Incised penetrating wound 3.2 c.m. x 1 c.m. just above and adjacent to medial end of left clavicle parallel to the line of clavicle. Both ends were acute and muscle deep only.
2. Incised penetrating wound 3.6 cm x 1.25 cmx7 cm just below the medieal end of left clavicle with both angles acute.
3. Incised penetrating wound 4.2 x 1.5 x 7 cm placed slightly oblique and vertical over right side of chest about 2 c.m. right to the right sternal border at just below the junction of manubrium and body of sternum, both ends were acute. The piece of lung tissue was coming out of the wound. One margin of the wound was shelved on the cost of others. Direction of the wound was right to left.
4. Incised penetrating wound of 3.5x1.5 x? was transversely placed with shelved margin over right chest about one cm medial to right nipple. The angles were acute.
5. A small superficial incised wound of 1 cm long over lower part of sternum was present at midline.
6. Vertical incised wound 1.5x2.3 cm muscle deep over right side of chin was present.
7. Two superficial incised wound communicating to each other subcutaneously over medial aspect of left leg upper part were present. Size of upper wound was 4.2x1 cm and lower one was 2.9x1 cm. Both the wound were apart from each other by a distance of .75 cm.Crl. A. No. 77/2000 Page 10 of 30
8. Two superficial incised wound communicating to each other over medial aspect of lower side of left thigh and left knee was present, which were apart each other by 5 cm. Size of upper wound was 4x1 cm and lower wound was 2.5x1.5 cm.
Internal examination:
On internal examination of the dead body of Keemti Lal, all structures of head and neck were found intact. Chest:- Injury no.2 cuts the underline tissues. Injury tract was obliquely downwards tearing the left 2nd intercostal space, perforates pleura and continued into upper lobe of left lung substance about 2.5 cm deep. Injury no.3 after cutting under line tissues cut the right third costal cartilage, bears right pleura entering into pleural cavity cutting interial border of right lung through and through continued into right ventricle through and through traversing through right ventricular chamber and further continued into left lung substance about 2.5 cm deep. Total length of the injury track was about 15 cm. Injury no.4 after cutting under line tissue obliquely downwards passed through right fifth rib transversely cutting it at middle peerforates pleura and pierced the lower lob of right lung about 3.5 cm deep, total depth was about 8 cm. Chest cavity was full of blood and clots. The stomach was full of undigested food.
14. On the basis of external and internal examination, it was opined by the Doctor that the cause of death was homothorax with element of asphyxia consequent to injuries to lung and heart as a result of injury No.2,3&4. All the injuries were ante mortem in nature and were caused by sharp cutting penetrating flat and straight weapon. Injuries No. 2, 3 & 4 were sufficient to cause death in ordinary course of nature singularly or collectively. As such, the fact that Keemti Lal Crl. A. No. 77/2000 Page 11 of 30 Kapoor met a homicidal death stands proved which is not even disputed by the accused.
15. Now the question that arises for our consideration is as to who were the perpetrators of the crime and whether the Trial Court was justified in holding the appellants guilty for the commission of the said offences. In order to nail the accused, the prosecution evidence comprises of:-
i) Eye witness account; ii) Motive; iii) Recovery of blood stained clothes of accused; and iv) Recovery of weapon of offence at the instance of accused.
16. PW2 Amar Pal @ Bunty and PW4 Sanjay Kumar were alleged to be eye witnesses of the incident, however, both these witnesses have not supported the case of prosecution, inasmuch as, PW2 Amar Pal @ Bunty, though admitted that he was working with Keemti Lal Kapoor in his shop and was doing the small jobs of attending telephone calls and cleaning etc., went on deposing that on the fateful day, at about 5:15 PM, he was asked by Keemti Lal Kapoor to fetch sugar. As such, he had gone to get sugar. After about 10-15 minutes, he came back to the shop with sugar and opened the door of the shop, he found Keemti Lal Kapoor lying dead on the floor. He raised an Crl. A. No. 77/2000 Page 12 of 30 alarm. However, he did not see anybody in the shop at that time. The witness was declared hostile and was cross-examined by learned Public Prosecutor for the State and in his cross-examination, he denied having made any statement mark X to the police where it was recorded that on 16th March, 1998, he saw accused Kale and one other boy, who was known to him earlier, giving knife blows on the person of the employer Keemti Lal Kapoor or that Kale held the neck of Keemti Lal Kapoor by one hand and was giving knife blow on his person with the other hand or that Kale tried to stab him also.
17. PW4 Sanjay Kumar, author of FIR also turned hostile as this witness deposed that on 16th March, 1998, he was out for his field work to distribute the pamphlets as per the instructions of Mr. Kapoor since 4:00 pm. He came back at about 5:30 pm to the shop and he saw Keemti Lal Kapoor drenched in blood lying on the ground near the door of the shop. He informed the police. However, he did not see what happened with Mr. Keemti Lal Kapoor. In cross- examination by learned Public Prosecutor, although he admitted his signatures on his statement Ex.PW4/A but went on stating that this statement was not made by him. He denied having stated to the Crl. A. No. 77/2000 Page 13 of 30 police that he saw accused Kamal Kishore holding Keemti Lal Kapoor by his neck and both the accused gave him knife blows. According to him, police got his signatures on Ex.PW4/A at the police station and at that time he was terribly terrified. The submission that FIR was lodged by PW4 promptly when there was no chance of embellishment like exaggeration and distortion although to some extent may be true but as held in Shanmugam & Anr. v. State, (2013) 12 SCC 765, a prompt lodging of the report may be no guarantee about it being wholly truthful. A prompt lodging of the report may not carry a presumption of truth with it. Human minds are too versatile and innovative to be subject to any such strait-jacket inferences. Embellishments, distortions, and false implication of innocent may come not only out of deliberation which the victim party may hold among themselves or with their well-wishers and supporters, but also on account of quick thinking especially when all that it takes to do so is to name all those whom the informant or his advisors perceive to be guilty or inimical towards them. Therefore, the mere fact that FIR was lodged promptly itself is no guarantee about its being truthful more particularly when the author of the FIR Crl. A. No. 77/2000 Page 14 of 30 himself disowns it. Except these two witnesses, there is no eye witness of the incident. Under the circumstances, since both these witnesses have not supported the prosecution case, as such, there is no direct evidence available on record.
18. It was admitted by the learned Additional Public Prosecutor for the State that in view of PW2 and PW4 turning hostile, prosecution case rests on circumstantial evidence.
19. In order to prove the previous conduct of the appellant and motive to commit crime, prosecution has examined PW1 Sonu Kaushal who is the nephew of the deceased Keemti Lal Kapoor. According to this witness, he was working with his maternal uncle at 28/8 Gali No. 15, Vishwas Nagar where his maternal uncle was doing the business of property. According to him, on 16th March, 1998, during morning hours, he was present at the shop when accused Kamal Kishore came to the shop of his mama and enquired about his whereabouts. He informed him that his mama had gone away for work. Kamal Kishore asked him to inform his mama about his visit and left. Thereafter, at about 4:00/4:30 PM, Kamal Kishore again came to the shop of his mama and enquired about him. He again Crl. A. No. 77/2000 Page 15 of 30 informed him that his mama was not at the shop and had gone out for work. On this, accused Kamal Kishore told him "kab tak bachega tera mama" and further told "kab tak dukan par nahi aayega. Aaj uska kam tamam kar denge". He thereafter left the shop and returned back at about 5:45 PM and found a crowd collected over there and came to know that his mama had been murdered. He further deposed that Kamal Kishore had extended his shop unauthorizedly and for that reason, his mama had made complaints to MCD and DCP Office. At that juncture, Kamal Kishore, his mother and other neighbours had collected at the shop of his mama. In cross-examination, the witness admitted that he did not accompany his maternal uncle to the office of MCD or DCP when he had gone to lodge complaint regarding unauthorised expansion of the shop by the accused Kamal Kishore. He also could not tell the date when the complaints were made. He, however, admitted that neither from the office of MCD or DCP, anybody came to make any inquiry regarding the complaints made by his maternal uncle. He further admitted that prior to 16th March, 1998, he did not witness any quarrel having taken place between his mama and the accused persons. The Investigating Officer has not Crl. A. No. 77/2000 Page 16 of 30 bothered to collect any evidence regarding any alleged unauthorized construction made by accused Kamal Kishore nor collected copy of any complaint allegedly made by Keemti Lal Kapoor in the office of MCD or DCP. As such, it is not established as to whether any unauthorised construction was made by accused Kamal Kishore or any complaint was made by the deceased to any of the authorities. Moreover, although in examination-in-chief, he has deposed that when complaints were made by his mama to DCP and MCD, accused Kamal Kishore, his mother and neighbours had collected at the shop of his mama but in cross-examination, he admits that prior to the date of occurrence, no quarrel had taken place between his mama and the accused persons. Accused Kamal Kishore was running the shop of electronics and there is nothing on record to show that he was bad character of the area or was involved in any other case. There is also nothing to show that regarding unauthorized construction allegedly made by Kamal Kishore, any quarrel took place between him or Keemti Lal Kapoor.
20. As regards, visits of Kamal Kishore at the office of deceased and threat administered by him, testimony of PW1 does not find Crl. A. No. 77/2000 Page 17 of 30 corroboration from PW2 and PW4 who nowhere deposed that on 16.3.1998, Kamal Kishore visited the office of deceased twice or gave any threat. That being so, there is no cogent and reliable evidence much less on the evidence of PW1 which could have been the motive of killing Keemti Lal Kapoor.
21. The other circumstance found against the appellant by the Trial Court was that on the basis of the disclosure statements of the appellants, weapons alleged to be used in the commission of offence stained with human blood were recovered. Moreover, when the accused were apprehended, they were wearing blood stained clothes. On the basis of the report of serologist, the prosecution has also averred that the knives and clothes stained with human blood group B were also recovered at the instance of the appellants, from the places shown by them. On account of the aforesaid circumstances, the Trial Court was of the opinion that the chain of circumstances was complete and the completed chain of circumstances pointed the fingers for commission of the said offence onlyat the appellants.
22. The material witnesses in this regard were PW6 Constable Suresh Chand, PW14 SI Sunil Kumar and PW20 Inspector Bal Ram Crl. A. No. 77/2000 Page 18 of 30 Solanki. It is the case of prosecution that on 17th March, 1998, an information was received by Additional SHO B.R. Solanki at about 4:00 PM that one accused was seen at ISBT Anand Vihar. On this information, police officials along with secret informer went to ISBT Anand Vihar and accused Kamal Kishore was found sitting on the bench inside ISBT. He was apprehended. After interrogation, he was taken to PP Anand Vihar where he made a disclosure statement Ex.PW6/B that he could get the knife recovered which was thrown in the garbage in the drain of Road No.57. Blood stained clothes of the accused were seized vide recovery memo Ex.PW6/C and thereafter at the instance of accused Kamal Kishore, knife was recovered which was seized vide recovery memo Ex.PW6/D. The accused also pointed out the place of occurrence vide pointing out memo Ex.PW6/E. Thereafter accused Jai Bhagwan was also apprehended at ISBT Anand Vihar. His blood stained clothes were also seized and this accused also made a disclosure statement Ex.PW6/G and got recovered the knife. It is admitted by all the three prosecution witnesses that there was no dearth of independent witnesses, inasmuch as, there were stall vendors, kiosk, DTC booth etc. Except Crl. A. No. 77/2000 Page 19 of 30 for making a general and bald statement that public persons were asked to join the proceedings but none agreed, it is admitted by all of them that neither any stall vendor nor kiosk owner nor employees of DTC were asked to join the proceedings regarding apprehension of accused and subsequent recoveries. As such, we are left with the testimony of the police officials. Although, it is true that there is no rule of law that the conviction cannot be based on the testimony of the police official, however, rule of prudence requires that when all the witnesses are from the police department, their testimony is required to be scrutinized with great care. In Rohtas v. State of Haryana, JT 2013 (8) SC 181, Hon‟ble Supreme Court considered the issue at length and after placing reliance upon its earlier judgment, came to the conclusion that where all witnesses are from the police department, their deposition must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or prosecuting agency. However, as far as possible, the corroboration of their evidence on material particulars should be sought. That being so, it is required to be seen whether the Crl. A. No. 77/2000 Page 20 of 30 testimony of police officials find corroboration and inspire confidence.
23. As regards recovery of blood stained clothes of accused Kamal Kishore, Constable Suresh Chand (PW6) has deposed that father of accused Kamal Kishore brought the blood stained clothes of accused at Anand Vihar ISBT and thereafter, it was taken into possession. However, SI Sunil Kumar and Inspector Balram Solanki have deposed that the accused was wearing blood stained clothes and the same were taken into possession. Inspector Bal Ram Solanki went a step further by deposing that father of the accused brought another set of clothes which were changed by Kamal Kishore and his blood stained clothes were taken into possession. Similarly, accused Jai Bhagwan was apprehended after 8:00 PM on 17th March, 1998 wearing the blood stained clothes. It is to be kept in mind that the incident had taken place on 16th March, 1998. It seems highly improbable that after committing murder of Keemti Lal Kapoor, the accused persons will continue to wear the blood stained clothes and will come to a crowded place like Anand Vihar Bus Terminal. Khalil Khan v. State of MP, (2003) 11 SCC 19 was also a case where Crl. A. No. 77/2000 Page 21 of 30 recovery of blood stained personal clothes of the accused was effected after four days of murder. It was observed by Hon‟ble Supreme Court that it is extremely difficult to believe that a person involved in such a serious crime would still be wearing blood stained clothes even after four days of the murder which fact is opposed to normal human conduct. In the instant case also, besides the fact that there are inconsistencies in the testimony of police officials as to whether the accused persons were wearing blood stained clothes, same is also opposed to human conduct, as such, we think it is not safe to place reliance on this part of the prosecution case.
24. Coming to the recovery of weapon of offence, as per disclosure statement of accused Kamal Kishore Ex.PW6/B, he had thrown the knife in the garbage of the drain of Road No. 57 while as per disclosure statement of Jai Bhagwan Ex.PW6/G, he had thrown the knife in the bushes of Maharaja Suraj Mal Road and they could get the knives recovered.
25. As regards recovery of knife at the instance of Kamal Kishore, testimony of PW6 Constable Suresh is very vague, inasmuch as, he has simply deposed that the accused led the police party to the spot Crl. A. No. 77/2000 Page 22 of 30 where he stated to have thrown the knife and on his pointing out, the knife was recovered after removing the bushes and it was picked up by Sunil Kumar. However, SI Sunil Kumar has deposed that accused Kamal Kishore led the police party near nala at Road No. 57 and from the garbage picked up the knife and handed over the same to the Investigating Officer of the case. According to PW20 Inspector Bal Ram Solanki, the accused led the police party to nala near 60 ft. road and after getting down the slope at the nala, he pointed out the place where he had thrown the knife and then, knife was got recovered. Consequently, testimony of Constable Suresh is quite vague regarding the place from where the knife was got recovered by the accused whereas there is material discrepancy in the testimony of SI Sunil Kumar and Inspector Bal Ram Solanki as to the place from where the knife was got recovered by accused Kamal Kishore. Similar is the position with regard to recovery of knife at the instance of accused Jai Bhagwan. After the recovery of knives, same were sent to Dr. K. Goel (PW15) who conducted post-mortem on the dead body of deceased for his subsequent opinion. Although as regards knife which was later on termed as dagger Ex. P7 recovered at the instance Crl. A. No. 77/2000 Page 23 of 30 of Kamal Kishore, it was opined that injuries No. 1 to 8 mentioned in post-mortem report Ex.PW15/A are possible by this weapon, as regards knife Ex.P8 recovered at the instance of Jai Bhagwan, it was opined that „no definite opinion regarding the mode of infliction of the injuries over the body of the deceased can be given.‟
26. Moreover, PW9, in his cross-examination, has deposed that when he visited the shop of Keemti Lal Kapoor, he saw two knives lying outside the shop. One of those knives was lengthy and the other one was of normal size. If the two knives were already lying outside the shop of the deceased on 16th March, 1998, the subsequent recovery of two knives at the instance of accused persons on 17th March, 1998 becomes doubtful.
27. The recoveries of blood-stained clothes and weapon of offence at the instance of the appellant, however, has to be viewed in light of various decisions of the Supreme Court where such kind of recoveries have been held to be very weak evidence.
28. In the decision reported as AIR 1963 SC 1113, Prabhoo v. State of U.P. recovery of a blood-stained shirt and a dhoti as also an axe on which human blood was detected was held to be extremely Crl. A. No. 77/2000 Page 24 of 30 weak evidence. Similarly, in the decision reported as (1977) 4 SCC 600 (1), Narsinbhai Prajapati v. Chhatrasinh Kanji, the recovery of a blood-stained shirt and a dhoti as also the weapon of offence a dhariya were held to be weak evidence. In the decision reported as AIR 1994 SC 110, Surjit Singh v. State of Punjab the recovery of a watch stated to be that of deceased and a dagger stained with blood of the same group as that of the deceased were held to be weak evidence. As late as in the decision reported as (2009) 17 SCC 273, Mani v. State of Tamil Nadu recoveries of blood stained clothes and weapon of offence stained with blood were held to be weak recoveries. In Mustkeem @ Sirajudeen vs. State of Rajasthan, AIR 2011 SC 2769, the fact that the traces of blood found on the deceased matched those found on the recovered weapons was held to be insufficient to arrive at the conclusion that the latter were used for the murder. Similarly in Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625, it was held that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of Crl. A. No. 77/2000 Page 25 of 30 conviction u/s 302 could be recorded.
29. In view of the aforesaid decisions coupled with the fact that in the instant case, recovery of weapon of offence is doubtful, more particularly, in view of two versions coming on record, merely because blood found on the deceased matched with the blood found on the clothes of accused and recovered weapons, it will not be safe to arrive at the conclusion that accused were the perpetrators of the crime.
30. In the absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant, on the basis of such slander evidence, could have been found guilty for commission of the offence punishable u/s 302 IPC.
31. Moreover, the appellants examined DW2 Constable Ajmer Singh who was working as a driver of official gypsy bearing registration No. DNA 5832 on 17th March, 1998. This witness brought the log book of this vehicle and deposed that as per the log book, there was an entry for departure of Sh. B.R. Solanki, Additional SHO for the court of Karkardooma at 2:35 PM with him and for Crl. A. No. 77/2000 Page 26 of 30 return from the courts at 4:20 PM. Thereafter, there is an entry in the log book on 17th March, 1998 itself for the departure of the official vehicle from Police Station Vivek Vihar to Nand Nagri at 4:25 PM and return of the vehicle from Nand Nagri to Police Station at 11:45 PM. The entry in the log book was not believed by the learned Additional Sessions Judge on the ground that the log book entries are not maintained very strictly and no reliance can be placed on the same to draw an inference that the vehicle did not move as testified by the Investigating Officer. This observation may be true but in the case in hand, the testimony of Constable Ajmer Singh was not even challenged by the State that the official vehicle left from Police Station Vivek Vihar to Nand Nagri at 4:25 PM and returned at 11:45 PM as the learned Additional Public Prosecutor did not even choose to cross-examine this witness nor gave any suggestion that instead of Nand Nagri, the vehicle had gone to ISBT Anand Vihar and various other places as deposed by the prosecution witnesses. That being so, there is no cogent reason to disbelieve the log book entries appearing in Ex.DW2/A which also casts a doubt regarding the apprehension of accused from Anand Vihar Bus Terminal, recovery of blood stained Crl. A. No. 77/2000 Page 27 of 30 clothes and weapon of offence at their instance in the manner as deposed by prosecution witness.
32. It is too well settled in law that where the case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence, which is by now well settled.
33. In a most celebrated case of the Supreme Court reported in 1984 (4) SCC 116 Sharad Birdhichand Sarda v. State of Maharashtra in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under:
(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, Crl. A. No. 77/2000 Page 28 of 30
(ii) 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,
(iii) The circumstances should be of a conclusive nature and tendency,
(iv) They should exclude every possible hypothesis except the one to be proved, and
(v) 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.
34. The doctrine of circumstantial evidence was once again discussed and summarised in Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra, 2008 (3) SCC 210 in the following terms:
10 ...It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
35. We are of the considered opinion that it would not be safe and proper to hold the appellant guilty for commission of offence and he is entitled to benefit of doubt.
36. In the light of the aforesaid well settled principles of law by several authorities of Hon‟ble Supreme Court, we are of the opinion that the judgment and order of conviction as recorded by Trial Court Crl. A. No. 77/2000 Page 29 of 30 cannot be sustained in law. The same is, therefore, hereby set aside and quashed. The appeal is allowed. Appellant is acquitted of the charges levelled against him.
37. Sentence of the accused Kamal Kishore was suspended vide order dated 3rd February, 2003 and he was released on bail. His bail bond is cancelled and surety stands discharged.
Copy of the judgment along with Trial Court record be sent back forthwith.
(SUNITA GUPTA) JUDGE (KAILASH GAMBHIR) JUDGE JULY 18, 2014 rs Crl. A. No. 77/2000 Page 30 of 30