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
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