in the high court of delhi at new delhi kumar soin vs. state.pdf6. further investigation revealed...

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Crl.A.No.214/1996 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: August 27, 2009 Judgment delivered on : November 2 7, 2009 + CRIMINAL APPEAL NO.214 /1996 VINOD KUMAR SOIN @ KAPIL KUMAR ..... Appellant Through: Mr.R.N. Mittal, Sr. Advocate with Mr. Puneet Mittal, Mr. Rajeev Garg & Mr. Manoj Kumar, Advocates Versus STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J. 1. Appellant Vinod Kumar Soin being aggrieved by his conviction in Sessions Case No.18/92, FIR No.244/91, Police Station Greater Kailash on the charges under Section 302 IPC and Section 27 of the Arms Act

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  • Crl.A.No.214/1996 Page 1 of 32

    * IN THE HIGH COURT OF DELHI AT NEW DELHI

    Judgment reserved on: August 27, 2009

    Judgment delivered on : November 2 7, 2009

    + CRIMINAL APPEAL NO.214 /1996

    VINOD KUMAR SOIN @ KAPIL KUMAR ..... Appellant

    Through: Mr.R.N. Mittal, Sr. Advocate with

    Mr. Puneet Mittal, Mr. Rajeev

    Garg & Mr. Manoj Kumar,

    Advocates

    Versus

    STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate

    CORAM:

    HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

    HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

    the judgment? Yes

    2. To be referred to the Reporter or not ? Yes

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

    AJIT BHARIHOKE, J.

    1. Appellant Vinod Kumar Soin being aggrieved by his conviction in

    Sessions Case No.18/92, FIR No.244/91, Police Station Greater Kailash

    on the charges under Section 302 IPC and Section 27 of the Arms Act

  • Crl.A.No.214/1996 Page 2 of 32

    and the sentence awarded in terms of order on sentence dated

    28.09.1996, has preferred the instant appeal.

    2. Briefly put, case of the prosecution is that on 11.12.1991, an

    information was conveyed by Duty Constable Satya Pal from AIIMS to

    Police Station Greater Kailash that one R. Kumari was brought to the

    casualty of AIIMS by one Kapil Kumar S/o Harbans Lal R/o B-236,

    Greater Kailash, Part-I with bullet injuries. The information was

    recorded at the Police Station as DD No.6A dated 11.12.1991

    (Ex.PW25/A). SI Krishan Murari (PW37) along with Constable

    Dharambir (PW33), on the receipt of DD report visited AIIMS and

    collected the MLC of R. Kumari Ex.PW5/D. She was declared unfit for

    statement. The history given on MLC was “alleged gunshot on

    abdomen, no first hand witness/no history”. Neither aforesaid Kapil

    Kumar nor any relative of the injured was found by SI Krishan Murari at

    the hospital. He appended his endorsement on the MLC Ex.PW5/D and

    sent it to the Police Station with a request for registration of the FIR

    under Section 307 IPC. On the basis of the Rukka, formal FIR was

    registered.

    3. SI Krishan Murari is stated to have thereafter visited the place of

    occurrence, which was B-236A, Greater Kailash, Part I and not B-236,

    Greater Kailash as mentioned in the MLC. At the spot of occurrence, SI

    Krishan Murari met security guard-cum-cook Man Bahadur (PW1) and

    he recorded his statement under Section 161 Cr.P.C., wherein he

  • Crl.A.No.214/1996 Page 3 of 32

    stated that in the morning of 11.12.91 at about 10:30 a.m. Reena Sood

    (deceased) came to the residence of the appellant and he overheard

    the appellant asking the injured as to why she had come to the

    residence and she should have gone to the office where there was lot

    of pending work. The deceased responded that she would also go to

    the office. The appellant told him to offer tea to the deceased, but she

    declined that and went into the small bedroom. Appellant also

    followed her to the said bedroom and he (PW1) went to the kitchen and

    resumed cleaning job. He also stated that suddenly he heard the

    scream of the deceased and immediately rushed to the small bedroom.

    He noticed the appellant with a revolver in his right hand and he was

    apparently nervous. The appellant threw the revolver in the bathroom

    and told him to pick up the madam. He further stated to the

    Investigating Officer that he saw the deceased lying near the toilet

    seat. Her head was towards the toilet and feet towards the door of the

    bath room. He, with the help of the appellant, brought the deceased to

    the small bedroom and placed her on the bed. The appellant

    instructed him to immediately call Dr. Kapoor. He came out and sent

    the driver Govind Ballabh, PW12 to call Dr. Ashok Kapoor (PW14) from

    House No.B-231, Greater Kailash, Part-I. Dr. Kapoor, PW14 examined

    the injured Reena and advised to shift her to the hospital. Thereafter,

    Ms. Reena was put on the back seat of the car of the appellant and the

    appellant as well as Dr. Kapoor along with driver Govind Ballabh went

    to the hospital. SI Krishan Murari, PW37 also recorded the statements

  • Crl.A.No.214/1996 Page 4 of 32

    of Govind Ballabh (PW12), Jeevan Chand (PW11), the Dr. A.K. Kapoor

    (PW14), Shri S.M. Sood (PW34) and Duty Constable Satya Pal (PW6).

    4. That on the same day at about 1:40 p.m., patient R. Kumari

    expired and information of her death was conveyed to the Police

    Station vide DD No.30B. On receipt of information about the death of

    R. Kumari, Section 302 IPC was added in the case and the investigation

    was taken over by the SHO, Inspector K.S. Bedi (PW38). Inspector K.S.

    Bedi reached at the spot and found the small bedroom of House No.B-

    236A, Greater Kailash, Part-I locked. He got the lock opened.

    Photographs of the place of occurrence was taken from various angles.

    Crime team was requisitioned and scene of crime was examined with

    the help of PW1 Man Bahadur. One revolver was found lying near the

    toilet seat of the bathroom annexed to the small bedroom. A pair of

    black shoes belonging to the deceased was found in the tub. Bathroom

    curtains were also lying on the floor and the towel stand was found

    broken. In the small bedroom, a lady‟s wrist watch was found lying on

    the carpet near the bed. As per the advice of crime team in-charge,

    the Investigating Officer secured the scene of crime for the inspection

    by the CFSL team.

    5. That on 12.12.1991, CFSL visited the spot of the occurrence and

    took photographs of the spot. They also lifted finger prints from the

    revolver. Two swabs of blood stains were also lifted by CFSL team. All

  • Crl.A.No.214/1996 Page 5 of 32

    those articles along with the wrist watch found in the small bedroom

    were taken into possession.

    6. Further investigation revealed that Kapil Kumar, who as per the

    MLC had admitted the deceased under the name of R. Kumari, was

    actually Vinod Kumar Soin and the patient R. Kumari was actually the

    deceased Reena Sood. Kapil Kumar was arrested. On interrogation, he

    made a disclosure statement and pursuant to that he got recovered his

    clothes including the sweater which he was wearing at the time of the

    occurrence. The Investigating Officer arranged for post mortem of the

    body and collected the post mortem report.

    7. On the search of the residential house of the appellant, some

    cards were recovered. The incriminating exhibits and finger prints of

    the appellant were sent to CFSL and the report was collected. Further

    investigation revealed that the revolver recovered from the spot of

    occurrence belonged to the appellant and its licence had expired in

    1987 and thereafter it was never renewed. Therefore, the charge

    under Section 25/27 Arms Act was also added in the case.

    8. The investigation also revealed that the deceased wanted to

    leave her job and on 06.12.91, she had given an interview for

    appointment in M/s. Hindustan Carbide Pvt. Ltd., through M/s. Talents

    Combined, Nehru Place. The Investigating Officer recorded statements

    of the witnesses and obtained the result of examination by CFSL. The

    finger prints lifted from the revolver were incomplete in their

  • Crl.A.No.214/1996 Page 6 of 32

    characteristics, therefore, no opinion could be given. However, five

    finger prints of the deceased were found on the inner side of the door

    of the toilet attached to the smaller bedroom of the house.

    9. On finding sufficient evidence against the appellant, he was

    challaned and sent for trial. The appellant was charged for the

    offences punishable under Section 302 IPC and Sections 25/27 of the

    Arms Act. The appellant pleaded innocence and claimed to be tried.

    10. On completion of trial, the learned Trial Judge found sufficient

    circumstantial evidence against the appellant pointing towards a

    definite hypothesis of his guilt. He accordingly convicted the appellant

    on both the counts.

    11. At the outset, it would be relevant to note that the appellant,

    when examined under Section 313 Cr.P.C., claimed to be innocent.

    The defence set up by him is in his answer to Q.No.61, which is

    reproduced thus:

    “Ans. I am innocent. I have been falsely implicated. I was at home doing office work when in the morning Reena Sood of her own came to my residence at 10.30 a.m. on the pretext of getting some urgent files cleared. In fact I asked her to go to the office as there was rush of work in the office on that day. There were employees at home like chowkidar, maid-servant Maya, etc. She being my Secretary, even used to come in my absence at my house and had an access to my brief case where the pistol used to be kept in a pouch. When I heard a loud sound in the bathroom where she had gone I immediately rushed there, called the doctor Ashok Kapur, who is my neighbour. Thereafter we put her in the car rushed to the hospital AIIMS which is one of the best Govt. Hospital, got her admitted, arranged for

  • Crl.A.No.214/1996 Page 7 of 32

    blood, medicines, drips, signed for the consent for her operation and thus did all anybody could do to save her life. I informed her parents, left a message in the office. As a law abiding citizen I was in the hospital throughout except for a short-while when I had gone for breakfast. I also informed the police and was present at the house with the police. I was unfortunately having matrimonial dispute with my wife during the last about 2-3 years prior to the incident and the reproachment talks were going on due to the intervention of common friends and relatives during that period. Even the landlady of the house, who lives on the same building also was aware of everything. I had told everything correctly to the AIIMS. I am also known by the name of Kapil Kumar since my childhood. I have bank account, telephone connection, even the marriage card and many other documents in this name. I have been falsely implicated by the police with ulterior motives to black-mail me and to financially ruin me at the instance of my competitors. I had large number of employees including ladies working in the company. There was no question of any misbehaviour by me towards anybody. Only when I moved the bail application on 7.1.92 police and the parents got the false statements recorded in support of their case on or about 9.1.92 i.e. after a period of more than a month. The bail applications which I moved and the certified copies thereof are Ex.DA,DB and DC. The newspaper cuttings of the relevant date is also Ex.DD.

    She was suffering from some sort of depression either on account of some family problems or may be on account of my matrimonial reproachment that she took such an extreme step to end her own life. My brief case used to go to the office everyday and used to come back to my home everyday containing the pouch and the said weapon. It also used to contain office files which used to be handled by her and, therefore, she had an access to the weapon, and had the knowledge about it.

    I am innocent. I pray for mercy.”

    12. Supplementary statement of the appellant under Section 313

    Cr.P.C. was recorded on 20.08.1996, wherein he reiterated his

    innocence and tendered in evidence a copy of resolution of Speed Flow

  • Crl.A.No.214/1996 Page 8 of 32

    Continental Pvt. Ltd. Ex.D-1, a certificate of bank verifying the account

    in the name of Kapil Kumar Ex.D-2, a wedding card Ex.D-3 and the

    show cause notice which was served upon him with regard to the

    revolver Ex.D-4. From the documents Exhibits D-1 to D-3, the

    appellant had tried to show that he was also known as Kapil Kumar.

    The appellant declined to lead evidence in defence.

    13. On conclusion of trial, the learned additional Sessions Judge

    found the appellant guilty of charges under Section 302 IPC and

    Section 27 of the Arms Act on the basis of the circumstantial evidence.

    The conviction is based upon as many as nine circumstances detailed

    below:

    “1. That the deceased Reena Sood was employed as a Secretary with the

    accused in his office.

    2. That on 11.12.91 the deceased has gone to the house of the accused where

    the incident had taken place.

    3. That the accused was also present in his house at the time of incident.

    4. That the accused was married and was having strained relations with his

    wife and divorce petition was also pending between them.

    5. That the accused was having evil eye on the deceased and has also tried to

    use the deceased for his customers.

    6. That for the above said reasons the deceased had applied for alternative

    job.

    7. That the accused was having a revolver in his house and the licence of the

    said revolver had already expired.

    8. That the bullet injury was received by the deceased from the revolver of

    the accused.

    9. That the deceased received bullet injury and was admitted in the hospital

    by the accused and the accused has given the incomplete and incorrect

    particulars in the hospital such as the name of Reena Sood was got

    recorded as „R.Kumari‟ and disclosed his name as Kapil Kumar and he

    also disclosed the occupation of the deceased as Govt. Service and also

  • Crl.A.No.214/1996 Page 9 of 32

    got his address recorded as B-236 Greater Kailash-I and then he

    absconded from the hospital and was not seen by the police or the parents

    of the deceased in the hospital.”

    14. We may note at the inception that there is no dispute about the

    existence of the circumstance Nos.1 to 4 and 7 to 9.

    15. The core issue in view of the explanation given by the accused in

    his statement under Section 313 Cr.P.C. is whether it is a case of

    homicide or whether the deceased committed suicide as explained by

    the appellant in his statement under Section 313 Cr.P.C. In case the

    answer is in favour of the homicide, then the question would arise who

    is responsible for the death of the deceased?

    16. Learned senior counsel for the appellant has submitted that the

    learned Trial Court, while coming to the conclusion of guilt of the

    appellant, has not appreciated some very important aspects of the

    case.

    17. Learned senior counsel for the appellant has assailed the

    impugned judgment on the ground that the learned trial Judge has not

    properly appreciated the evidence. He has totally ignored the evidence

    supporting the theory of suicide committed by the deceased. It was

    submitted that the learned Trial Court has failed to consider that the

    only witnesses present in the vicinity of the place of occurrence at the

    relevant time, namely PW1 Man Bahadur, PW2 Gurupdesh Kaur, PW11

    Jeevan Chand and PW12 Gobind Ballabh have not supported the theory

  • Crl.A.No.214/1996 Page 10 of 32

    of murder and if the testimony of PW1 Man Bahadur is to be believed,

    then it could only be a case of suicide committed by the appellant.

    18. It was also submitted that the learned trial Judge has put undue

    emphasis on the MLC of the deceased Ex.PW5/D wherein the name of

    the deceased is mentioned as R. Kumari instead of Reena Sood and the

    name of the person who took her to the hospital i.e. the appellant is

    mentioned as Kapil Kumar instead of Vinod Kumar Soin. From this,

    according to learned senior counsel for the appellant, the trial Judge

    has wrongly inferred that the appellant had deliberately given wrong

    names to the hospital authorities with a view to mislead the police in

    order to gain time to create his defence and that the learned Trial

    Court failed to appreciate that there is ample evidence on record to

    show that the appellant is also commonly known as Kapil Kumar, which

    name he gave in the MLC. He has also drawn our attention to the

    testimony of PW6 Constable Satya Pal who was duty constable at AIIMS

    at the relevant time and who filled the above referred particulars in the

    MLC. PW6 Satya Pal stated that because of heavy inflow of patients in

    the casualty of AIIMS, generally they write the names of the patients

    etc. in abbreviated form which, according to learned counsel for the

    appellant, explains the name of patient mentioned in the MLC as R.

    Kumari instead of Reena Sood.

    19. Learned senior counsel for the appellant has further submitted

    that the learned Trial Court has totally ignored that the conduct of the

  • Crl.A.No.214/1996 Page 11 of 32

    appellant in immediately calling the doctor to examine the injured

    Reena Sood and taking her to the hospital for treatment leads to an

    inference that he was innocent and he never wanted the deceased to

    die.

    20. He further argued that the learned Trial Court failed to take note

    of the fact that as per the post mortem report, injury suffered by the

    deceased was a close contact gunshot wound, which is generally

    possible in the cases of suicide. Even Dr.R.K. Sharma, PW5, who

    conducted the post mortem examination, was categoric in his reply

    that it could be a case of homicide or suicide. The revolver recovered

    from the spot of occurrence also could not be connected with the

    appellant as finger prints found on the revolver did not match with the

    specimen finger prints of the appellant. It was also pointed out that

    even the bullet extracted from the dead body could not be connected

    with the weapon of offence.

    21. It was further submitted on behalf of the appellant that the

    motive for murder projected by the prosecution is only an afterthought

    as the father of the deceased, in his earlier statements Ex.PW34/DA

    and Ex.PW34/DB recorded on 11 and 12th September 1991

    respectively, did not speak anything about the motive and the story of

    motive came to surface only after the appellant had applied for bail on

    7th January 1992.

  • Crl.A.No.214/1996 Page 12 of 32

    22. It was argued that from the testimony of PW1 Man Bahadur, PW2

    Gurupdesh Kaur and PW12 Gobind Ballabh, it is amply proved on

    record that the deceased was disturbed because of reconciliation talks

    between the appellant and his estranged wife and she, being the

    secretary of the appellant, was aware that the revolver in question was

    generally kept in the briefcase of the appellant and, therefore, a

    possibility cannot be ruled out that in a fit of depression, the deceased

    took out the revolver from the briefcase and shot herself.

    23. Besides the above arguments, it was submitted that even the

    investigation in this case has not been conducted in an unbiased and

    fair manner. In the nutshell, contention of learned senior counsel for

    the appellant is that the evidence taken as a whole does not rule out

    the possibility of suicide, therefore, the learned Trial Court ought to

    have extended the benefit of doubt to the appellant.

    24. Learned counsel for the State, on the other hand, has argued in

    support of the impugned judgment. He has submitted that learned

    Trial Court has rightly appreciated the evidence and the circumstances

    proved on record provide a complete chain of events which leads to

    one and only inference of guilt of the accused. He has submitted that

    as per the post mortem report, the deceased had suffered the gunshot

    wound 23 cm below the sternal notch, which is a site just below the

    ribcage, which is a very awkward position for a person to shoot himself

    while committing suicide. Otherwise also, as per the testimony of PW5

  • Crl.A.No.214/1996 Page 13 of 32

    Dr.R.K. Sharma, who conducted post mortem of the deceased, the

    trajectory of the bullet was perpendicular to the body which in case of

    suicide is highly improbable, if not impossible. Thus the possibility of

    suicide is totally ruled out.

    25. Before adverting to the submissions made by respective parties,

    it would be useful to have a look on the law relating to the evidence in

    criminal cases based upon circumstantial evidence. In the case of

    Gagan Kanojia Vs. State of Punjab, (2006) 13 SCC 516, a case

    based on circumstantial evidence, the Supreme Court has, inter alia,

    observed thus:

    “9. The prosecution case is based on circumstantial evidence. Indisputably,

    charges can be proved on the basis of the circumstantial evidence, when

    direct evidence is not available. It is well-settled that in a case based on a

    circumstantial evidence, the prosecution must prove that within all human

    probabilities, the act must have been done by the accused. It is, however,

    necessary for the courts to remember that there is a long gap between 'may

    be true' and 'must be true'. Prosecution case is required to be covered by

    leading cogent, believable and credible evidence. Whereas the court must

    raise a presumption that the accused is innocent and in the event two views

    are possible, one indicating to his guilt of the accused and the other to his

    innocence, the defence available to the accused should be accepted, but at

    the same time, the court must not reject the evidence of the prosecution,

    proceeding on the basis that they are false, not trustworthy, unreliable and

    made on flimsy grounds or only on the basis of surmises and conjectures.

    The prosecution case, thus, must be judged in its entirety having regard to

    the totality of the circumstances. The approach of the court should be an

    integrated one and not truncated or isolated. The court should use the

    yardstick of probability and appreciate the intrinsic value of the evidence

    brought on records and analyze and assess the same objectively.

    10. We would proceed on the well-known principles in regard to appreciation

    of the circumstantial evidence which were noticed by the High Court in the

    following terms:

    1) There must be a chain of evidence so far complete as not to

    leave any reasonable ground for a conclusion consistent with

    the innocence of the accused and it must be such as to show

  • Crl.A.No.214/1996 Page 14 of 32

    that within all human probability the act must have been done

    by the accused.

    2) Circumstantial evidence can be reasonably made the basis of

    an accused person's conviction if it is of such character that it

    is wholly inconsistent with the innocence of the accused and

    is consistent only with his guilt.

    3) There should be no missing links but it is not that everyone of

    the links must appear on the surface of the evidence, since

    some of these links may only be inferred from the proven

    facts.

    4) On the availability of two inferences, the one in favour of the

    accused must be accepted.

    5) It cannot be said that prosecution must meet any and every

    hypothesis put forwarded by the accused however far-fetched

    and fanciful it might be. Nor does it mean that prosecution

    evidence must be rejected on the slightest doubt because the

    law permits rejection if the doubt is reasonable and not

    otherwise.”

    26. In the light of above enunciated legal position, we propose to

    deal with the submissions of the parties point-wise.

    27. Coming to the first contention of learned senior counsel for the

    appellant. He has submitted that it is the case of the prosecution that

    at the time of occurrence, besides the appellant, PW1 Man Bahadur,

    PW11 Jeevan Chand and PW12 Gobind Ballabh were present in close

    vicinity of the place of occurrence and none of them have supported

    the case of the prosecution to prove the theory of murder and instead,

    their testimony exonerates the appellant.

    28. So far as PW11 Jeevan Chand and PW12 Gobind Ballabh are

    concerned, they in their testimony in the Court have stated that at the

  • Crl.A.No.214/1996 Page 15 of 32

    relevant time they were on duty at the entrance gate of the house of

    the appellant, therefore, they had no occasion to see as to what

    happened in the house. PW1 Man Bahadur was examined by the

    prosecution to prove that when he entered the guest room after

    hearing the deceased, he noticed the appellant with revolver in his

    hand, which he threw in the bathroom and that the appellant at that

    time was nervous. He however, turned hostile and did not support that

    theory. Instead he has stated that the deceased came to the house of

    the appellant on the fateful morning at about 10.30 a.m. and at that

    time the appellant was going through some files in the guest room.

    The appellant asked the deceased for the reason of her coming to the

    residence and remarked that she should have gone to the office to

    clear the pending work. However, the deceased told that she would

    leave for office after using the toilet and went to the bathroom. PW1

    Man Bahadur also stated that while he was standing in the corridor

    with driver Gobind Ballabh, he heard a shriek of the deceased and at

    that time, the appellant was sitting in the guest room and asked him to

    find out from where the sound came. Thereafter he and Gobind

    Ballabh went to the small room and knocked at the door of the

    bathroom annexed to the room. When they entered the bathroom

    after pushing open the door, they found the deceased lying in the bath

    tub and she was groaning. According to this witness, the appellant

    followed them to the bathroom and thereafter, he, with the help of the

    appellant picked up the deceased and brought her to the small bed

  • Crl.A.No.214/1996 Page 16 of 32

    room and laid her on the bed. Learned senior counsel for the appellant

    has submitted that from the aforesaid testimony of PW1 Man Bahadur,

    any possibility of the appellant having committed the murder of the

    deceased is ruled out. We do not find merit in this submission. PW1

    Man Bahadur, in our view, is not a reliable witness as he has resiled

    from his earlier statement made to the police during investigation.

    Further PW1 Man Bahadur is an interested witness because admittedly

    earlier he was employee of the appellant and since the arrest of the

    appellant he has been working at the house of father of the appellant.

    Further, if the version of PW1 Man Bahadur is taken to be true then the

    deceased ought to have committed suicide. One wonders, if she

    committed suicide while lying down in the bath tub, then the revolver

    which was used for committing suicide should have been in the bath

    tub. This, however, is not the case. As per testimony of PW1 Man

    Bahadur, the revolver was found lying near the toilet seat. Assuming

    that the deceased committed suicide while sitting on the toilet seat or

    standing near the toilet seat, then also it is highly improbable that her

    body could have been fully inside bath tub and there was no possibility

    of her feet being in the bath tub as stated by PW1 Man Bahadur in his

    cross-examination. This circumstance, by itself, belies the version of

    PW1 Man Bahadur exonerating the appellant and makes him an

    untrustworthy witness. Thus, in our view, the testimony of PW1 Man

    Bahadur is not worthy of any credence.

  • Crl.A.No.214/1996 Page 17 of 32

    29. Learned senior counsel for the appellant has further submitted

    that the learned Trial Court has wrongly concluded that the appellant

    deliberately gave incorrect information about the name and particulars

    of the deceased and self for the purpose of preparation of the MLC

    Ex.PW5/D with a view to mislead the investigating agency. He has

    argued that while drawing said inference, the learned Trial Court totally

    ignored that Constable Satya Pal (PW6), who admittedly filled in the

    columns pertaining to the details of patient and the person who

    brought her to the hospital, in his testimony stated that “the staff in

    the casualty of AIIMS is generally in a hurry” and also admitted the

    suggestion that “normally they record the names of the patient etc. in

    the MLCs in short form, even though the full particulars are given by

    the informant”. Learned counsel further pointed out that the learned

    Trial Court did not take into account the documentary evidence i.e.

    telephone directory entry Ex.PW1/DA in respect of telephone installed

    at M-59, Lajpat Nagar in his name, bank certificate pertaining to the

    bank account in the name of Kapil with Union Bank of India, Moti Bagh,

    Palika Bhawan Branch Ex.D-2, wedding card pertaining to the marriage

    of Kapil with Poonam Ex.D-3 and birthday greeting card Ex.P-14 and

    also the oral testimony of PW1, Man Bahadur, PW2 Gurupdesh Kaur

    and PW12 Gobind Ballabh to the effect that the appellant was also

    known as Kapil Kumar and his nameplate in the name of Kapil Kumar

    was displayed at the entrance of his residence. Regarding the

    allegation of wrong address, it was pointed out that it has come in

  • Crl.A.No.214/1996 Page 18 of 32

    evidence that B-236A, Greater Kailash-I is actually a plot carved out

    from Plot B-236. Therefore, non-mention of „A‟ in the address given in

    the MLC could not be taken as a deception.

    30. Perusal of the MLC Ex.PW5/D shows that in the MLC, name of the

    deceased is recorded as Ms. R. Kumari D/o Mr. Surender, Aged 23

    years, R/o Office-B-236 and in the column of „brought by the relative or

    friend‟, the name of the appellant, who admittedly had taken her to the

    hospital, is detailed as Kapil S/o Harbans Lal R/o B-236, Greater Kailash,

    Part-I, New Delhi. On perusal of the testimony of PW6, Duty Constable

    Satya Pal, it transpires that in his examination-in-chief, he stated that

    one lady named R. Kumari was brought to the hospital in injured

    condition by the appellant, who had given his name as Kapil S/o

    Harbans Lal. It is only in the cross-examination, he admitted the

    suggestion put to him that normally because of rush in casualty of

    AIIMS, they record names in the MLC in short form even if the full name

    of the patient or informant is given. From this suggestion, it transpires

    that the appellant has tried to set up a defence that he gave full name

    of deceased Reena Sood, but Duty Constable Satya Pal, PW6 wrote her

    name in abbreviated form. Since the deceased was known as Reena

    Sood, under natural course of circumstances, abbreviated form of her

    name should have been R. Sood and not R. Kumari. The fact that her

    name is described in the MLC as R. Kumari, is an indication that the

    appellant gave the name of the deceased as R. Kumari at the casualty

    of the AIIMS. So far as the explanation of the appellant that he is also

  • Crl.A.No.214/1996 Page 19 of 32

    known as Kapil Kumar, therefore, he gave his name as Kapil Kumar

    while admitting the deceased in AIIMS is concerned, appellant has

    mainly relied upon the purported documentary evidence referred to

    above. The documents Ex. PW1/DA, i.e., the entry in the telephone

    directory about the telephone connection No.6830590 in the name of

    Soin Kapil at the address of M-59, Lajpat Nagar, house of his father,

    and Ex.D-2, the certificate issued by Union Bank of India, Moti Bagh,

    Palika Bhawan Branch certifying that one Kapil Kumar was maintaining

    a savings account with their branch, do not help the appellant in any

    manner because those documents by no means prove that Kapil Kumar

    referred to in said documents actually is the appellant Vinod Kumar

    Soin. It could also be anyone else. Same logic applies to the wedding

    invitation card Ex.D-3 and birthday greeting card Ex.P-14. The best

    witness to prove that the appellant is also known as Kapil Kumar and

    he had a telephone connection installed in the name of Kapil Kumar at

    the house of his father, was his father, Harbans Lal. From the

    testimony of PW1 Man Bahadur, it is clear that since the arrest of

    appellant, he has been working as a servant with the father of the

    appellant. This implies that Shri Harbans Lal, father of the appellant,

    is alive. There is no evidence to suggest that he had expired before

    the conclusion of trial. Despite that, the appellant has opted not to

    examine his father. Since the appellant has withheld the best witness

    to prove that he was also known as Kapil Kumar, we are constrained to

    draw an adverse presumption that had Harbans Lal been produced in

  • Crl.A.No.214/1996 Page 20 of 32

    witness box, he would not have supported said defence of the

    appellant. Coming to the oral evidence of PW1 Man Bahadur, PW12

    Gobind Ballabh and PW2 Gurupdesh Kaur that the appellant was also

    known to his friends as Kapil Kumar, we do not find their testimony

    reliable, because PW1 Man Bahadur and PW12 Gobind Ballabh, being

    employees of the appellant, fall in the category of interested witnesses.

    PW2 Ms. Gurupdesh Kaur is the landlady of the appellant in respect of

    House No.B-236A, Ground Floor. She has stated that she had given the

    said premises on rent to Pushpa Builders for the residence of its

    Managing Director V.K. Soin @ Kapil. She has not produced the rent

    note or lease deed indicating that the name of Managing Director

    therein is mentioned as V.K. Soin @ Kapil. Therefore, we are not

    inclined to believe her testimony as well. Otherwise also the appellant

    has not examined even a single friend or relative of his who could

    verify that the appellant was also known as Kapil Kumar. Thus, we do

    not find any merit in the contention that there was no deception in

    giving wrong particulars at the hospital while admitting the deceased

    at AIIMS. Learned senior counsel for the appellant has further

    submitted that even if it is assumed that the appellant gave wrong

    particulars while admitting the deceased at AIIMS, then also there is a

    possibility that he might have given wrong particulars only with a view

    to avoid adverse publicity. This argument of learned senior counsel for

    the appellant appears to be an afterthought because no such

    explanation was given by the appellant when he was afforded an

  • Crl.A.No.214/1996 Page 21 of 32

    opportunity to give explanation in his statement under Section 313

    Cr.P.C.

    31. The next submission on behalf of the appellant is that the

    conduct of the appellant immediately after the incident leads to one

    and only inference of his innocence. Learned senior counsel has

    argued that from the testimony of PW1, Man Bahadur and PW12

    Gobind Ballabh, it is established that the appellant, immediately after

    the occurrence, sent his driver to call Dr. Ashok Kumar Kapoor (PW14)

    and when Dr. Ashok Kumar Kapoor advised to shift the deceased to the

    hospital, the appellant immediately took her to the hospital for

    treatment. Aforesaid conduct cannot be of a guilty person.

    32. It is true that the appellant did take the deceased to AIIMS and

    admitted her there, however, the fact remains that at the hospital, he

    did not come clean while giving her name and his own name. Not only

    this, perusal of testimony of Dr. Ashok Kumar Kapoor, PW14 would

    show that he had stated that, on his enquiry the appellant told him that

    the lady has sustained a gunshot wound. This conduct of the appellant

    leads to an inference of homicide. Had the deceased actually shot

    herself with the gun of the appellant, the first reaction of the appellant,

    under the natural course of circumstances, would have been to tell the

    Doctor that the deceased has shot herself in the bathroom. Not only

    this, even at the hospital he did not give the history. Perusal of MLC

    Ex.PW5/D shows that the Doctor concerned has recorded “alleged

  • Crl.A.No.214/1996 Page 22 of 32

    gunshot on abdomen, no first hand witness/no history”. Admittedly,

    the appellant had accompanied the deceased to the hospital. There

    was no reason for him not to tell the Doctor concerned that the

    deceased had shot herself. It is strange that on one hand he

    deliberately did not give correct particulars of the patient as well as

    himself, which implies that he was trying to mislead the authorities and

    on the other hand he did not tell the Doctor that the deceased shot

    herself in an attempt to commit suicide, which would have been the

    natural conduct if it was a case of suicide. The appellant in his

    statement under Section 313 Cr.P.C. has explained that he rang up his

    office and instructed them to inform the parents of the deceased, yet

    the appellant did not care to inform the Police about the incident which

    had occurred at his residence. All these circumstances negative the

    theory of the innocence of the appellant and lead us to an inference

    that the appellant shot the deceased with his revolver and throughout

    had been making an effort to get himself out of the soup. Aforesaid

    conclusion finds support from the fact that as per the MLC, the

    deceased was admitted in the hospital at 11:20 a.m. Despite that,

    PW6, Constable Satya Pal, the Duty Constable at the hospital did not

    convey the information about her admission in the hospital with

    gunshot injury till 12.15 p.m., which also raises a suspicion that the

    appellant was hobnobbing with him after the admission of the

    deceased in the hospital and he persuaded Constable Satya Pal to

    delay sending information to the Police Station. We may also note that

  • Crl.A.No.214/1996 Page 23 of 32

    the appellant got another opportunity to give the correct name of the

    deceased at the time when he gave consent for surgery of the

    deceased. Perusal of consent form Ex.PW8/A6 shows even in the

    consent, not only the name of the deceased is recorded as R. Kumari,

    but while signing the consent form, the appellant represented himself

    to be a Co-worker (Manager) instead of mentioning the correct fact that

    he was the Managing Director and she was employed as his Secretary.

    This circumstance also belies the theory of the innocence of the

    appellant as projected by learned counsel for the appellant.

    33. Regarding motive, learned senior counsel for the appellant has

    submitted that the testimony of the parents of the deceased, PW34

    Shri S.M. Sood and PW30 Ms. Sheela Sood to the effect that the

    appellant had an evil eye on the deceased, is not reliable in view of the

    fact that Shri S.M. Sood in his earlier statements Exhibits PW34/DA and

    PW34/DB made to the Police on 11.12.91 and 12.12.91 did not make

    such allegation and he, for the first time, made said allegation against

    the appellant on 09.01.92 only after the appellant had applied for bail

    on 07.01.92.

    34. Even if the testimony of the parents of the deceased regarding

    the motive is discarded, then also from the photographs Exhibits

    PW35/DB1 to PW35/DB6 and the two cards Exhibits P-12 and P-13

    purported to have been sent to the appellant by Reena Sood, it is

    indicated that there was something more to their relationship apart

  • Crl.A.No.214/1996 Page 24 of 32

    from the professional relationship of the boss and the secretary. From

    the photographs of the deceased, which have been produced in

    defence by the appellant, it is apparent that the deceased was intimate

    with the appellant. It is admitted case of the parties that the appellant

    was married and divorce proceeding between him and his wife was

    pending in the court. It is also admitted that some talk of

    reproachment and conciliation had started in those divorce

    proceedings about four or five months prior to the date of occurrence.

    There is every possibility that aforesaid reconciliation proceedings

    provided a motive because knowledge of affair of the appellant with

    the deceased would have come in the way of a possible settlement.

    PW3 Lalit Mohan Arora, a partner of the placement concern M/s.

    Talents Combined has stated that Ms. Reena Sood had given her bio-

    data to him with a request to sponsor her name for a suitable vacancy

    whenever available. He proved her bio-data Ex.PW3/A. He also stated

    that on 02.12.91, he had forwarded a call letter Ex.PW3/B to the

    deceased Reena Sood for appearing in an interview for appointment in

    Hindustan Carbide Pvt. Ltd. PW4, Shri Ramesh Kalra, Managing

    Director of Hindustan Carbide has corroborated his version by stating

    that pursuant to the said call letter, Reena Sood turned up for

    interview before him on 06.12.91. From the aforesaid evidence, it is

    apparent that Reena Sood in December, 1991 had started trying for

    the change of job. A possibility cannot be ruled out that the appellant

    did not want to let go of her. Therefore, in the fit of anger, he might

  • Crl.A.No.214/1996 Page 25 of 32

    have shot her down. Thus, in our view, there was a motive, though

    weak.

    35. In the matter of Atley Vs. State of U.P., AIR 1955 SC 807, the

    Hon‟ble Supreme Court observed thus:

    “That is true; and where there is clear proof of motive for the

    crime, that lends additional support to the finding of the court that the

    accused was guilty but the absence of clear proof of motive does not

    necessarily lead to the contrary conclusion. If the prosecution had

    proved by clear evidence that the appellant had reasons of his own for

    getting his first wife out of the way, that would have lent additional

    assurance to the circumstantial evidence pointing to his guilt. But the

    fact that the prosecution has failed to lead such evidence has this effect

    only, that the other evidence bearing on the guilt of the accused has to

    be very closely examined.”

    36. In view of the aforesaid legal position, the evidence in this case is

    to be appreciated with extra care and caution.

    37. Learned senior counsel for the appellant has further submitted

    that PW5, Dr. R.K. Sharma conducted post mortem examination of the

    deceased. He, in his cross-examination, is categoric that the gunshot

    wound suffered by the deceased could be suicidal or homicidal and his

    said opinion is based upon the totality of circumstances. Thus, it was

    argued that once it is doubtful that the fatal injury can be suicidal, the

    appellant is entitled to the benefit of doubt. We are not persuaded by

    the argument of learned counsel for the appellant. The effect of

    testimony of Dr. R.K. Sharma, PW5 is that he was not sure whether it

    was a case of homicide or suicide. If the Doctor concerned is unable to

    give a clear opinion in this regard, it would not justify extending the

  • Crl.A.No.214/1996 Page 26 of 32

    benefit of doubt to the appellant in disregard of other accompanying

    circumstances and evidence on record.

    38. Learned senior counsel for the appellant has further argued that

    from the report of fingerprints Ex.PW31/A, fingerprints on the weapon

    recovered from the spot did not tally with the fingerprints of the

    appellant and his fingerprints were not found at the place of incident.

    Only fingerprints which were found in the bathroom where Reena Sood

    was found lying in the tub were that of both the hands of the deceased

    on the inner side of the door of the bathroom and as per the ballistic

    report, the bullet recovered from the body of the deceased could not

    be connected with the revolver. On the basis of aforesaid

    circumstances, learned senior counsel for the appellant has urged us to

    infer that it is a case of suicide and not homicide.

    39. Perusal of the report of fingerprints Ex.PW31/A reveals that

    fingerprints lifted from the weapon of offence were not complete and,

    therefore, could not be compared with the fingerprints of the accused,

    as such this factor is of no avail to the appellant. As per the

    explanation given by the appellant, his pistol used to remain in his

    briefcase and this fact was within the knowledge of the deceased. He

    has tried to project a case that the deceased was depressed and,

    therefore, she picked up the pistol from the briefcase, went inside the

    bathroom and shot herself. If that was true, then one wonders that the

    deceased must have carried the revolver in one hand to the bathroom.

  • Crl.A.No.214/1996 Page 27 of 32

    In that eventuality, there was no occasion for existence of chance

    prints of both her hands on the back side of the door of the bathroom.

    Thus, presence of chance prints of both the hands of the deceased also

    negatives the possibility of suicide.

    40. No doubt, generally in case of homicide possibility of close

    contact gunshot wound is rare because, in the natural course of

    circumstance, victim in order to save himself/herself would not allow

    the assailant to come too close. However, it is possible when the

    assailant and the victim are intimate with each other. In the instant

    case there is sufficient evidence on record to show that the appellant

    and the victim were quite intimate. Therefore, it is not surprising that

    the appellant could come close to the deceased and kill her by a close

    contact gunshot wound.

    41. In support of theory of suicide, learned senior counsel for the

    appellant has submitted that PW1 Man Bahadur has stated that on the

    relevant day when the deceased arrived at the kothi, she did not

    appear to be happy or normal and she was different from her usual

    self. He further went on to say that she was not happy with the

    development regarding reproachment between the appellant and his

    wife and she used to speak ill of the wife of the appellant. He also

    admitted the suggestion of learned defence counsel that since the talk

    regarding compromise between the appellant and his wife, the

    deceased used to remain depressed and disturbed. PW2, Ms.

  • Crl.A.No.214/1996 Page 28 of 32

    Gurupdesh Kaur, in her cross-examination has also stated that once

    the deceased told her that perhaps she was in love with the appellant

    and when she came to know about the possibility of reconciliation

    between the appellant and his wife, she used to remain upset and

    behave abnormally. PW12, Gobind Ballabh has also stated in his cross-

    examination that for the last three or four months before the incident,

    the deceased used to remain agitated and she would often rebuke and

    beat up the pet dogs of the appellant. From the aforesaid, learned

    senior counsel for the appellant has urged us to infer that the deceased

    was in a state of depression. We are not inclined to accept this

    argument because above referred witnesses are not experts in human

    psychology. Moreover, they have not narrated any specific instance

    which could lead to an inference that she had developed suicidal

    tendency due to depression. Best witnesses to throw light on the

    behaviour of the deceased could be her parents, friends and

    colleagues. No colleagues are found to have been examined by the

    appellant. There is no previous medical history of depression.

    42. Learned senior counsel for the appellant has submitted that as

    per the post mortem report, it was a close contact gunshot wound,

    which is generally not possible in the case of homicide because under

    natural course of circumstances, the victim, with a view to protect

    him/her would never permit the assailant to come very close.

    Otherwise also when a suicide is committed by a close contact firearm,

    as per medical science, the traces of the skin and blood from the

  • Crl.A.No.214/1996 Page 29 of 32

    wound can come in contact with the hand of the deceased and in this

    case also, the nail clipping of the deceased was taken and it tested

    positive for human blood as per the report of the CFSL, which

    circumstance also points towards the possibility of suicide committed

    by the deceased. We do not find any merit in this contention because

    there is ample evidence on record to show that the appellant and the

    deceased had intimate relationship, therefore, it is not surprising or

    abnormal that the appellant managed to come close to the deceased

    and have a shot at her. Further the presence of blood on the nail

    clipping of the deceased is also explained from the fact that generally

    whenever a person suffers a painful injury, by reflex action his/her

    hand tries to grab the spot of injury. Otherwise also, PW1 Man Bahadur

    has stated that when they reached in the bathroom, the deceased was

    groaning and moving her hand (“Hath Pair Mar Rahi Thi”). Therefore, it

    is possible that in that process her hands touched the wound, which

    explains the presence of blood or skin traces in her nail clipping.

    Therefore, presence of blood or skin in the human nail clipping is not of

    much help to the appellant.

    43. It is pertinent to note that as per the testimony of PW5 Dr.R.K.

    Sharma, who conducted post mortem of the deceased, the deceased

    had suffered close contact gunshot wound 23 cms. below the sternal

    notch and the trajectory of fire arm track was straight (subsequent

    opinion PW5/C). The aforesaid site of the entry wound in our

    considered view is in a highly awkward position for a person to commit

  • Crl.A.No.214/1996 Page 30 of 32

    suicide with a revolver. This circumstance also negatives the theory of

    suicide.

    44. Another argument on behalf of the appellant is that the bullet

    found in the body of the deceased has not been connected with the

    weapon of offence i.e. revolver Ex.P1. In this regard, he has referred

    to the report of CFSL Ex.PX4. On perusal of Ex.PX4, it transpires that

    the relevant bullet recovered from the body of the deceased was

    mutilated, therefore, no definite opinion could be given that it was fired

    from the revolver recovered from the bathroom of the house of the

    deceased. However, the fact remains that it is established by the

    report Ex.PX4 that the mutilated bullet was of .32” and the weapon of

    offence is also a .32” calibre revolver, as such said bullet could have

    been fired from the revolver. Just because a definite opinion could not

    be given by the ballistic experts because the bullet extracted was

    mutilated, the prosecution case cannot be thrown away.

    45. Lastly, it was submitted on behalf of the appellant that even if it

    is assumed that it is a case of homicide, then also there is no evidence

    on record to establish that it was the appellant who had committed the

    murder. Indeed, there is no direct evidence available to establish that

    the appellant caused the fatal gunshot injury to the deceased, but all

    the circumstances lead to one and only inference about the guilt of the

    appellant. PW1 Man Bahadur in his testimony in court stated that

    when the incident took place, he and PW11 Jeevan Chand were talking

  • Crl.A.No.214/1996 Page 31 of 32

    in the corridor. Aforesaid version of PW1 has not been controverted by

    the appellant either in his cross-examination or the explanation given

    by the appellant in his statement under Section 313 Cr.P.C. Therefore,

    in view of the aforesaid evidence, PW1 Man Bahadur or PW11 Jeevan

    Chand having played any role in the death of the deceased is ruled out

    and only person left who had an opportunity to inflict gunshot injury to

    the deceased is the appellant. Moreover, admittedly, the revolver of

    the deceased was recovered from near the spot and the mutilated

    bullet extracted from the dead body was of the same calibre .32” as

    that of the revolver of the deceased. From the aforesaid

    circumstances, it can be safely inferred that the appellant had an

    opportunity to kill the deceased by using his revolver.

    46. In view of our discussion above, we do not find any infirmity in

    the impugned judgment and we find that the learned trial Judge has

    rightly concluded that the prosecution has been able to establish the

    circumstances detailed in para 13 of this judgment. We may add that

    besides aforesaid circumstances, the site of the entry wound found on

    the dead body and the trajectory of the bullet also rules out the

    possibility of suicide because the aforesaid site of injury 23 cm below

    the ribcage at sternal notch is an awkward position for a person to

    commit suicide. Generally, in a case of suicide, the person either

    shoots himself on the head or by putting the barrel of the revolver in

    his mouth to ensure instant death. Further, the factum of the dead

    body having been found in the bath tub and that the revolver was lying

  • Crl.A.No.214/1996 Page 32 of 32

    near the toilet also rules out the possibility of suicide because if the

    deceased had shot herself while lying down in the bath tub, the

    revolver ought to have been found in the bath tub and not near the

    toilet seat and if she had shot herself while sitting on the toilet seat or

    standing near the toilet seat, then there was no possibility of her dead

    body being found within the bath tub as stated by PW1 Man Bahadur,

    nor her shoes could have been in the bath tub. The circumstances

    referred to above, in our considered view, formed a chain so complete

    which leads to the hypothesis of the guilt of the appellant, ruling out

    any possibility of his innocence. Accordingly, we do not find any

    infirmity in the impugned judgment of conviction.

    47. Appeal is, therefore, dismissed being without merit.

    48. Appellant is on bail. His bail-cum-surety bond stands cancelled.

    Appellant be taken into custody to undergo the remaining sentence.

    AJIT BHARIHOKE, J.

    NOVEMBER 27, 2009 SANJAY KISHAN KAUL, J. pst/gm