Delhi High Court

Deepak Kaul vs State on 16 December, 2009

Author: Pradeep Nandrajog

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved On: 3rd December, 2009
                        Judgment Delivered On: 16thDecember, 2009

+                          CRL. A. No. 985/2001

         DEEPAK KAUL                             ..... Appellant
                  Through:         Mr.Sumeet Verma, Advocate

                                   versus

         THE STATE OF NCT OF DELHI      ..... Respondent
                  Through: Mr.Pawan Sharma, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J.

1. At 08.45 A.M. on 29.03.1998 HC Om Parkash PW-7,

recorded DD No.4A, Ex.PW-7/A, at police station Malviya Nagar

recording that a wireless information has been received that

two persons have been killed in the ground floor of the house

bearing municipal no.B-1/4, Malviya Nagar.

2. This swung the police into action. On receipt of the

afore-noted DD entry, Inspector Mahipal Singh PW-17,

accompanied by SI Om Parkash PW-16, Const. Jagat Singh PW-

13, Const. Kiranpal PW-8/PW-12 and SI K.P.Malik PW-9,

reached the building in question where they found that the

ground floor of the said building was divided into two equal

portions bifurcating the plot into two equal halves, one

towards the northern and the other towards the southern

boundaries of the plot; that dead body of a male person

named V.N.Kaul was lying on the floor of the drawing room in

the portion of the ground floor towards the southern side and

that dead body of a female person named Shanti Kaul wife of

V.N.Kaul was lying on a bed kept in the bedroom in the same

portion of the building. The appellant who is the nephew of the

deceased and his wife Anita Kaul who resided in the other

portion on the ground floor and Sanjeev Ahlawat PW-5, who

resided on the first floor of the building in question, were found

present outside the building.

3. No eye-witness being present, Inspector Mahipal

Singh got registered FIR No.253/98 by sending the teherir

Ex.PW-17/A to the police station.

4. Inspector Mahipal Singh noted blood drops on the

floor of the common area outside the two drawing rooms on

the ground floor i.e. the drawing rooms of the deceased and

the appellant. The floor of the drawing room of the appellant

was stained with blood at 14 spots. Cushion covers near the

body of V.N.Kaul and the bed sheet spread on the bed where

body of Shanti Kaul as also four pillows lying on the bed were

found stained with blood. Inspector Mahipal Singh seized the

blood stained articles as per memo Ex.PW-5/A. He prepared

the rough site plan Ex.PW-17/B showing the spots where he

noticed blood. He recorded the statement of Shamsher Singh

PW-3 as per which relations between V.N.Kaul and the

appellant were strained. The two dead bodies were seized and

sent for post-mortem to AIIMS.

5. The appellant was arrested at the spot as the

needles of suspicion pointed towards him on account of the

statement of Shamsher Singh and blood stains being noted in

the drawing room of the appellant as also blood being noted

on his shoes, which were seized vide memo Ex.PW-9/C. On

being interrogated the appellant made a disclosure statement

Ex.PW-9/B wherein he confessed to his guilt and stated that he

can get recovered the clothes which he was wearing at the

time of the murder of V.N.Kaul and Shanti Kaul and the dao

and the rod with which he had murdered them. Thereafter the

appellant led Inspector Mahipal Singh and Sanjeev Ahlawat

PW-5, to Siri Fort jungle and got recovered a dao and a rod

from under the grass which were seized vide memo Ex.PW-5/C.

The next day morning on 30.03.1998, the appellant again led

Inspector Mahipal Singh PW-17, SI Om Parkash PW-16 and SI

K.P.Malik PW-9 to Siri Fort jungle and got recovered a t-shirt

and a pant lying hidden in the bushes which were seized vide

memo Ex.PW-9/E.

6. On 31.3.1998 post-mortem was conducted on the

dead body of V.N.Kaul and Shanti Kaul. 16 injuries, 7 of which

were opined to be sufficient to cause death in the ordinary

course of nature both individually as well as collectively were

noted on the body of V.N.Kaul as per post-mortem report

Ex.PW-11/A and an equal number of injuries, 7 of which were

opined to be sufficient to cause death in the ordinary course of

nature both individually as well as collectively were noted on

the body of Shanti Kaul as per post-mortem report Ex.PW-11/B.

After conducting the post-mortem, the doctor handed over the

clothes, scalp hair and blood sample on a gauze of V.N.Kaul

and Shanti Kaul to Const.Kiranpal PW-8/PW-12, who in turn

handed over the same to Inspector Mahipal Singh vide memo

Ex.PW-8/A.

7. The seized materials; blood lifted from the floor

outside the entrance door of the house of V.N.Kaul; cushion

and cover of the chair and strands of the hair seized from the

room where body of V.N.Kaul was found; blood lifted from the

floor of the drawing room of the house of the appellant; bed

sheet, pillows and broken ring seized from the room where

body of Shanti Kaul was found; shoes of the appellant; dao,

rod, t-shirt and pant recovered at the instance of the appellant

and the clothes, scalp hair and blood sample of V.N.Kaul and

Shanti Kaul were sent for forensic examination and vide FSL

reports Ex.PX and Ex.PY it was opined that human blood was

detected on the strands of hair, cushion and cover of the chair

seized from the room where body of V.N.Kaul was found, group

whereof could not be determined; that group of the blood

seized from the floor outside the entrance door of house of

V.N.Kaul and floor of the drawing room of the house of the

appellant could not be determined; that human blood was

detected on the broken ring seized from the room where body

of Shanti Kaul was found, group whereof could not be

determined; that human blood of „B‟ group was detected on

the bed sheet and pillows seized from the room where body of

Shanti Kaul was found; that human blood of „A‟ group was

detected on the shoes of the appellant; that human blood of

„AB‟ group was detected on the dao recovered at the instance

of the appellant; that human blood of „A‟ group was detected

on the rod recovered at the instance of the appellant; that

human blood of „B‟ group was detected on the t-shirt

recovered at the instance of the appellant; that human blood

was detected on the pant recovered at the instance of the

appellant, group whereof could not be determined; that human

blood of „B‟ group was detected on the salwar and knee elastic

worn by Shanti Kaul at the time of her murder; that human

blood of „A‟ group was detected on the pyjama, vest and kurta

worn by V.N. Kaul at the time of his murder; that blood group

of Shanti Kaul could not be determined and that blood group of

V.N.Kaul was A.

8. Needless to state, the appellant was sent for trial.

Charges (two) were framed against the appellant for having

committed offences (two) punishable under Section 302 IPC.

9. At the trial, the prosecution examined 17 witnesses

to prove the seizures effected at the spot, the disclosure

statement of the appellant and the recovery of the dao and

the rod as also a t-shirt and a pant at the instance of the

appellant.

10. There being no eye-witnesses, it is apparent that

the case of the prosecution hinged upon the recoveries got

effected by the appellant, blood being detected on the floor of

the drawing room of the appellant, blood being detected on

the shoes of the appellant; and lastly the motive, which we

note failed since Shamsher Singh PW-3, while deposing in

Court stated that the relationship between the appellant and

his uncle i.e. the deceased and the wife of the deceased were

cordial.

11. Relevant would it be to note that pertaining to how

many people gathered at the spot and whether said persons of

the locality went inside the portion of the house occupied by

the deceased and the other half portion in occupation of the

appellant, Shamsher Singh PW-3 stated: "It is correct that

before the police came many persons of the locality have

gathered at the spot. I have not noticed any person entering

the house of B.N.Kaul in my presence. I do not know whether

the persons of locality had gone inside the house to see the

dead bodies'. Sanjeev Ahlawat PW-5 stated: ‟Apart from me

nobody had entered the room except wife and father of the

accd.' SI K.P.Malik PW-9 stated: 'When I reached the spot

along with IO there were many persons gathered outside the

house of the deceased which included neighbours. I do not

know whether any public person had entered the house of the

deceased.' Const. Jagat Singh PW-13 stated: 'When I reached

the spot people from the locality were present at the spot.' SI

Om Parkash PW-16 stated: 'When we reached on the place of

incident in the morning there about 5/6 public persons had

reached already'. On being questioned by the defence about

the blood stains found on the floor of the drawing room of the

house of the appellant, the witness stated: 'The blood stains

which I noticed in the house of accd. were very thin and dim in

nature....'. Inspector Mahipal Singh PW-17 stated: 'Prior to the

reaching of the police at the spot first the servant of the dec.

had entered the premises and she had told other persons

about the incident. Persons from the same building had

entered the room where dead body was lying before the police

reached. Number of persons from the locality were present at

the spot but standing outside the house'. On being questioned

about the defence about the blood stains found on the floor of

the drawing room of the house of the appellant, the witness

stated: The blood stains in the house of accd. were visible only

after careful and minute examination'.

12. In his examination under Section 313 Cr.P.C. the

appellant denied everything and pleaded false implication.

13. In defence, the appellant examined two witnesses

namely Julie Antony DW-1 and Jagannath Batra DW-2, the

acquaintances of V.N.Kaul and the appellant. Both the

witnesses deposed that the relations between V.N.Kaul and the

appellant were very cordial and that V.N.Kaul used to treat the

appellant as his son. Additionally, Julie Antony DW-1, deposed

that a quarrel had taken place between the appellant and

Sanjeev Ahlawat over the house of V.N.Kaul few days before

the incident.

14. Holding that the fact that a trail of human blood

was found from the floor outside the entrance door of the

house of V.N.Kaul to the drawing room of the house of the

appellant; that human blood of same group as that of Shanti

Kaul was detected on the shoes worn by the appellant around

the time of the murder of V.N.Kaul and Shanti Kaul; that

human blood of same group as that of V.N.Kaul was detected

on the rod recovered at the instance of the appellant; that

human blood of same group as that of Shanti Kaul was

detected on the t-shirt recovered at the instance of the

appellant and that human blood was detected on the pant

recovered at the instance of the appellant establish that the

appellant had committed the murder of V.N.Kaul and Shanti

Kaul, vide judgment and order dated 08.11.2001 the learned

Trial Judge has convicted the appellant and sentenced him to

undergo imprisonment for life for committing offences (two)

punishable under Section 302 IPC. The sentences awarded to

the appellant were directed to run concurrently. (It may be

noted here that the learned Trial Judge has held that the

prosecution has not been able to establish that the appellant

had a motive to murder V.N. Kaul and Shanti Kaul for the

reason the evidence of Shamsher Singh PW-3, pertaining to

the motive of the appellant does not appears to be trustworthy

when seen in the light of the evidence adduced by the

defence)

15. As noted herein above, under-noted 4

circumstances has led the learned Trial Judge to convict the

appellant:-

I. A trail of blood was found from the floor outside the

entrance door of the house of V.N.Kaul and Shanti Kaul to the

floor of the drawing room of the house of the appellant.

II. Shoes worn by the appellant around the time of the

murder of V.N.Kaul and Shanti Kaul was found to be stained

with human blood of same group as that of Shanti Kaul.

III. Dao and t-shirt recovered at the instance of the appellant

was found to be stained with human blood of same group as

that of V.N.Kaul and Shanti Kaul.

IV. Human blood was detected on the pant recovered at the

instance of the appellant.

16. A close scrutiny of the evidence on record shows

that the first circumstance used by the learned Trial Judge to

infer the guilt of the appellant is factually incorrect. No trail of

blood was found from the floor outside the entrance door of

the house of V.N.Kaul to the drawing room of the house of the

appellant. A perusal of the rough site plan Ex.PW-17/B and the

site plan to scale Ex.PW-17/H of the ground floor of the

building in question, the testimony of the police officers who

had participated in the spot investigation and Sanjeev Ahlawat

PW-5, shows that two drops of blood were lying on the floor

outside the entrance door of the house of the appellant and

that fourteen blood stains were found on the floor of the

drawing room of the house of the appellant.

17. Pertaining to 14 blood stains found on the floor of

the drawing room of the appellant, a perusal of the rough site

plan Ex.PW-17/B and the site plan to scale Ex.PW-17/H of the

ground floor of the building in question shows that the ground

floor of the building in question was divided into two mirrored

portions. The portion on the left was occupied by V.N.Kaul and

Shanti Kaul whereas the portion on the right was occupied by

the appellant and his family. There was a portico in front of the

two portions.

18. The testimonies of Shamsher Singh PW-3, Sanjeev

Ahlawat PW-5 and Inspector Mahipal Singh PW-17, establish

that Shamsher Singh, Sanjeev Ahlawat, the appellant, the wife

and father of the appellant and the maid employed by V.N.Kaul

and Shanti Kaul had gone to the rooms where the bodies of

V.N.Kaul and Shanti Kaul were lying before the arrival of the

police. The testimonies of Shamsher Singh PW-3, Sanjeev

Ahlawat PW-5, Inspector Mahipal Singh PW-17, SI K.P. Malik

PW-9, SI Om Parkash PW-16 and Const Jagat Singh PW-13,

establish that many persons from the neighbourhood of

V.N.Kaul and Shanti Kaul had gathered at the spot before the

arrival of the police. Thus, the possibility of somebody

unwillingly and unconsciously stepping on the blood of the

deceased and thereafter walking into the drawing room of the

appellant, thereby staining the same with blood cannot be

ruled out. The fact, as deposed to by SI Om Prakash PW-16

and Inspector Mahipal Singh PW-17 that the blood stains were

very faint also indicates towards this happening.

19. The second circumstance used by the learned Trial

Judge to infer the guilt of the appellant is that the shoes worn

by the appellant around the time of the murder of V.N.Kaul

and Shanti Kaul was stained with human blood having same

blood group as that of Shanti Kaul.

20. The said finding is partially incorrect. The blood

group of V.N.Kaul was A as recorded in the FSL report Ex.PY.

There is no direct evidence to establish the blood group of

Shanti Kaul inasmuch as her blood group could not be

ascertained at the FSL with reference to her blood sample

taken on a piece of gauze, but could be safely said to be group

„B‟ because this was the blood group detected on her clothes

and the cloth pieces lifted from the bed where her body was

lifted. The FSL report shows that the blood group of V.N.Kaul

was group „A‟. As per the FSL report human blood of group „A‟

i.e. the same group as that of V.N.Kaul was detected on the

shoes worn by the appellant when he was arrested.

21. The testimonies of Shamsher Singh PW-3, Sanjeev

Ahlawat PW-5 and Inspector Mahipal Singh PW-17, establish

that the appellant had gone to the rooms where the bodies of

V.N.Kaul and Shanti Kaul were lying. The floors of the rooms in

question were stained with blood at different spots. The

possibility that shoes of the appellant got stained with blood at

the time when he walked on the floors stained with blood of

V.N.Kaul and Shanti Kaul cannot be ruled out at all. In such

circumstances, the fact that the shoes worn by the appellant

around the time of the murder of V.N.Kaul and Shanti Kaul was

stained with human blood having same blood group as that of

V.N.Kaul is explainable and hence not ruling out his innocence.

22. Pursuant to the disclosure statement made by the

appellant he got recovered a dao and an iron rod, the

purported weapons of offence. As noted above, blood group of

V.N.Kaul was of group „A‟ and there is evidence to conclude

that the blood group of Shanti Kaul was „B‟. Surprisingly, as

per the FSL report blood of group „AB‟ was detected on the

dao.

23. It is apparent that some overzealous police officer

has planted blood on the dao for the reason blood group „A‟

and blood group „B‟ when mixed together do not make blood

group „AB‟.

24. That apart in the decision reported as Prabhoo v

State of UP AIR 1963 SC 1113 an axe, a shirt and a dhoti which

were found to be stained with human blood were recovered

from the house of the accused, at his instance. Supreme Court

clarified the provisions of Section 25 to 27 of the Evidence Act

by laying down that any statement of the accused that with a

particular weapon of offence, he had committed the murder is

not admissible under Section 27 of the Evidence Act as it does

not lead to any discovery of fact within the meaning of Section

27 of the Evidence Act and even the statement of the accused

that blood stained shirt and dhoti belong to him is not such a

statement which leads to any discovery within the meaning of

Section 27. It was laid down that it is fallacious to treat the fact

discovered within Section 27 as equivalent to the object

produced; the fact discovered embraces the place from which

the object was produced and the knowledge of the accused as

to this, and the information given must relate distinctly to this

fact. It was held that is not legally permissible to admit

evidence of the alleged statement of the accused that the axe

had been used to commit the murder or the statement that

the blood stained shirt and dhoti were his. It was held that

from mere production of the blood stained articles by the

accused, one cannot come to the that the accused committed

the murder inasmuch as the fact of production cannot be said

to be consistent only with guilt of the accused and inconsistent

with his innocence, for the reason it is quite possible that

someone else committed the murder and kept the blood

stained articles in the house of the accused and that the

accused might have produced the said articles when

interrogated by the police.

25. In the decision reported as Mani v State of Tamil

Nadu 2008 (1) JCC 277 the case set up by the prosecution that

the appellant and one Moyyasamy had murdered deceased

Sivakumar who had strained relationship with Moyyasamy. On

24.11.1996 the deceased was chatting with his father

Arunachalam and his other family members when the

appellant came there and had a cup of coffee with

Arunachalam. At about 6.00 P.M. the appellant took the

deceased to his house. When the deceased did not turn up till

10.00 P.M. Arunachalam went to the house of the appellant

and found that blood was oozing from the house. Since the

house was locked Arunachalam came back to his residence

where one Amulnathan informed him that he had seen the

deceased in the company of the appellant and Moyyasamy at

07.00 P.M. On the next morning at 6.00 A.M. Arunachalam

again went to the house of the appellant and found trail of

blood near the said house and ultimately from that he traced

the body of the deceased which was lying in the nearby field.

The appellant got recovered blood stained clothes and kodvul

lying under the grass in an open ground which was 300 feet

away from the field from where the body of the deceased was

recovered. The Sessions Court convicted both the accused

persons whereas the High Court acquitted Moyyasamy but

convicted the appellant. Supreme Court acquitted the

appellant for following reasons: - (i) no evidence was led by

the prosecution to establish that the house where blood was

found was owned or exclusively possessed by the appellant;

(ii) Arunachalam is not a trustworthy witness inasmuch in view

of the fact that he realized that something unusual has

happened at 10.00 P.M. but he did not lodge a report with the

police till next day at 10 O‟ clock; (iii) the discovery is a weak

kind of evidence and cannot be wholly relied upon an and

conviction in such a serious matter cannot be based upon the

discovery; (iv) the prosecution never made any attempts to

prove that the clothes recovered at the instance of the

appellant belonged to him; (v) there is serious discrepancy in

the evidence pertaining to the recovery and (vi) even if the

evidence pertaining to recovery is accepted the fact that blood

stained clothes and kodvul were recovered at the instance of

the appellant does not connect the appellant with the crime.

(Emphasis Supplied)

26. In the decision reported as K.V. Chacko @ Kunju v

State of Kerela (2001) 9 SCC 277 an axe which was found to

be stained with human blood was recovered at the instance of

the appellant. It was held by Supreme Court that in the

absence of any evidence to establish that the death of the

deceased was caused by an axe, the said recovery does not

connect the accused with the murder of the deceased.

27. In the decision reported as Narsinbhai Haribhai

Prajapati v. Chhatrasinh and Ors AIR 1977 SC 1753 the

Supreme Court had held that in the absence of any other

evidence the circumstances of seizure of blood stained shirt

and dhoti from the person of an accused and dharias from the

houses of the accused are wholly insufficient to sustain the

charge of murder against the accused.

28. In the decision reported as Surjit Singh v. State of

Punjab 1993 Cri.L.J. 3901 a watch belonging to the deceased

and one dagger which was found to be stained with human

blood were recovered at the instance of the accused. It was

held by the Supreme Court that said recovery by itself, does

not connect the accused person with the murder of the

deceased. It was further held that said circumstance may

create some suspicion but the same cannot take the place of

proof.

29. In the decision reported as Deva Singh v. State of

Rajasthan 1999 Cri.L.J. 265 Supreme Court had held that

merely because a knife is alleged to have been recovered at

the instance of the accused would not lead to a conclusion that

the accused was the perpetrator of the crime of the murder.

30. In view of the above discussion, we hold that the

prosecution has not been able to establish beyond reasonable

doubt that the appellant is guilty of murdering V.N.Kaul and

Shanti Kaul. As already noted in foregoing paras, the learned

Trial Judge has held that the prosecution has not been able to

establish the motive of the appellant to murder V.N.Kaul and

Shanti Kaul. The fact that the prosecution failed to establish

the motive of the appellant lends credence to the conclusion

arrived by us that the appellant is innocent. In this regards, it

is relevant to note the following observations made by

Supreme Court in the decision reported as Tarseem Kumar v

Delhi Administration (1994) Supp (3) SCC 367:-

"Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution." (Emphasis Supplied)

31. It may be noted that on 29.03.1998 the father of

the appellant was admitted at the hospital and the appellant,

his wife and children had visited his father in late evening and

had returned to their house at late night. As per the

prosecution, in between, the appellant had returned and

murdered his uncle and aunt and thereafter went back to the

hospital to bring back his wife and children, but no such

evidence has been led to prove that the appellant was seen

near the place of the crime when his wife and children were

away.

32. The appeal is allowed. The impugned judgment and

order dated 8.11.2001 is set aside. The appellant is acquitted