Delhi High Court

Kamal Kishore & Anr. vs State Of Delhi on 18 July, 2014

*       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

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

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.

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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,

(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

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.