Judgment Kumar...Crl. Appeal No. 141/1994 Page 2 of 21 3. For deciding the fate of the surviving accused-appellant Rajender Kumar the prosecution case in respect of the incident of

Crl. Appeal No. 141/1994 Page 1 of 21

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Judgment delivered on: 22nd

July, 2010

+ CRIMINAL APPEAL NO. 141 of 1994

Rajneesh Kumar & Anr. ..... Appellants

- versus -

State (Govt. of NCT Delhi) .....Respondent

Advocates who appeared in this case:

For the Appellants : Mr. Anurag Jain, Advocate for appellant no. 2

For the Respondent : Mr. M.N. Dudeja, APP.

CORAM:

* HON'BLE MR. JUSTICE BADAR DURREZ AHMED

HON'BLE MR. JUSTICE P.K.BHASIN

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 the digest?(Yes)

Judgment

P.K.BHASIN, J:

The two accused-appellants had filed this appeal challenging their

convictions and the sentences awarded to them by the Additional Sessions

Judge vide judgment of conviction dated 30th April, 1994 and order on

sentence dated 23rd

May, 1994 for the commission of the offences

punishable under Section 302 read with Section 34 IPC and Section 392

read with Section 397 IPC as well as for the offences punishable under

Sections 25/27 of the Arms Act. They were found guilty of murdering one

Mr. Harish V. Rao on 9th

January, 1984.

2. Appellant no. 1 Rajneesh Kumar died during the pendency of this

appeal which has consequently already abated qua him.


3. For deciding the fate of the surviving accused-appellant Rajender

Kumar the prosecution case in respect of the incident of murder which

took place in the year 1984 may first be noticed. On 9th January, 1984 a

telephonic information was given to Vasant Vihar police station at about

7.10 p.m.by the Chief Security Officer of Hotel Siddharth Intercontinental

in Vasant Vihar that some incident had taken place in the hotel. That

information was recorded as DD No.10-A(Ex.PW-21-A) and then Sub-

Inspector L.N.Rao(PW-27) was handed over the investigation. He reached

Siddharth Intercontinental Hotel along with some other policemen and

there on coming to know that the incident had taken place on 8th floor of

the hotel they went to 8th floor. There one Anand Kumar(PW-1) informed

SI Rao that at about 6.45 p.m. he had seen two persons, one of whom was

armed with a revolver and the other with a knife, dragging one person who

was bleeding from his chest and that person was dragged inside room

no.802. Then SI Rao found the room no.802 closed from inside and after

lot of effort that room was got opened from inside. As per the prosecution

case when the door was opened from inside the two convicted accused

Rajneesh Kumar and Rajender Kumar were found present inside the room.

Rajneesh Kumar was holding a revolver and Rajender Kumar was holding

a knife in his hand. Both of them were over powered by the police officials

and the weapons which they were holding in their hands were taken into

police possession sealed and seized vide separate seizure memos. The

knife recovered from accused Rajender Kumar was found to be blood

stained. Inside the bath-room of room no. 802 one dead body having stab

wounds was found. On enquiry the dead body was found to be of that one


Mr. Harish V. Rao who had come to stay in the hotel. Since the death of

Mr. Rao appeared to be homicidal, the investigating officer S.I. L.N. Rao

prepared a rukka and got a case registered at Vasant Vihar Police Station

under Sections 302/397/34 IPC and accordingly FIR was registered.

Separate FIRs under Sections 25/27 of the Arms Act were also registered

against the two accused. The dead body of the deceased was got subjected

to post-mortem examination and the cause of death opined by the autopsy

surgeon Dr. Chander Kant(PW-25) was shock, haemorrhage and asphyxia

because of as many as seven injuries found on the dead body which

included three stab injuries also and the same were found to be sufficient

to cause death in the ordinary course of nature. The autopsy surgeon had

also opined that three stab injuries found on the dead body of the deceased

were likely to have been caused by the knife, which as per the prosecution

case was recovered from the possession of accused/appellant Rajender

Kumar. After completion of investigation the deceased accused Rajneesh

Kumar and accused/appellant Rajender Kumar were both charge-sheeted

by the investigating agency for the offences under Sections

302/392/397/34 IPC. Separate charge-sheets under Sections25/27 of The

Arms Act were also filed in Court and in due course all the three charge-

sheets came to be committed to the Sessions Court and then the cases were

assigned to the Court of Additional Sessions Judge for trial.

4. The learned Additional Sessions Judge clubbed all the three charge-

sheets since the same arose out of the same incident and then framed

charges under Sections 302/34 IPC as well as under Section 394 read with

Sections 397 and 34 IPC against both the accused persons. Both of them


were also charged separately for the commission of the offences

punishable under Sections 25/27 of the Arms Act. Since both the accused

had pleaded not guilty to the aforesaid charges the prosecution was called

upon by the trial Court to adduce its evidence.

5. 28 witnesses were then examined by the prosecution. The accused

while answering questions put to them at the time of recording of their

statements under Section 313 Cr.P.C. pleaded false implication. The

deceased accused Rajneesh Kumar did not claim that the amount of Rs.

2000/- which the prosecution was claiming to be in the purse recovered

from him and in which driving licence and visiting cards of the deceased

were also there was his own money. Thereafter, the two accused had also

examined one witness each.

6. Since there was no eye witness of the murder the prosecution had

relied upon certain circumstances for establishing the involvement of two

accused persons in the murder of the deceased. The learned Additional

Sessions Judge found all the circumstances relied upon by the prosecution

fully established and vide common judgment dated 30th April, 1994

disposed of all the three cases and convicted both the accused persons

under Sections 302 read with 34 IPC and vide order dated 23rd

May, 1994

sentenced both of them to undergo imprisonment for life and also to pay

fine of Rs. 1000/- each, in default of payment of fine they were ordered to

undergo further rigorous imprisonment for a month. Both the accused

were also convicted under Sections 392 read with 397 IPC but no sentence

was awarded on this count. Accused–appellant Rajinder Kumar was also

convicted under Section 25 of the Arms Act and sentenced to undergo


rigorous imprisonment for six months and also to pay a fine of Rs. 200/-

and to undergo further rigorous imprisonment for one month in the event

of default in payment of fine. For his conviction under Section 27 of the

Arms Act he was sentenced to undergo rigorous imprisonment for one

year and also to pay a fine of Rs. 500/- and to undergo further rigorous

imprisonment for two months in the event of non-payment of fine. The

deceased accused Rajneesh was also convicted under Section 25 of the

Arms Act and sentenced to undergo rigorous imprisonment for one year

and to pay fine of Rs. 500/- and to undergo further rigorous imprisonment

for two months in the event of non-payment of fine. Substantive sentences

of imprisonment were ordered to run concurrently.

7. On behalf of the surviving accused-appellant Rajinder Kumar his

counsel Mr. Anurag Jain argued the appeal. Learned counsel did not

dispute before us the fact that the deceased Harish V. Rao was murdered

and his dead body was found lying in the bathroom of room no. 802 of

hotel Siddharth Continental on the evening of 9th January, 1984. He,

however, strongly contended that the other circumstances put forth by the

prosecution for establishing the guilt of the accused persons cannot be said

to have been established beyond reasonable doubt since there are many

serious infirmities in the evidence of material prosecution witnesses who

claimed to have seen the accused persons inside room no. 802 of the hotel

from where the dead body of the deceased was recovered and as far as

PW-1, who had allegedly seen the deceased being dragged inside room

no.802 in injured condition by the accused persons, is concerned he had

not supported the prosecution.


8. On the other hand, Mr. M.N. Dudeja, learned Additional Public

Prosecutor appearing for the State fully supported the judgment of the trial

Court and contended that there are no infirmities whatsoever in the

prosecution evidence and its analysis done by the learned Additional

Sessions Judge and there is no scope for any interference by this Court and

the conviction of the accused deserves to be sustained.

9. When a case rests on circumstantial evidence, such evidence must

satisfy of-quoted following tests viz:

(1) the circumstances from which an inference of guilt is sought to

be drawn, must be cogently and firmly established;

(2) those circumstances should be of definite tendency unerringly

pointing towards the guilt of the accused;

(3) the circumstances taken cumulatively should form a chain so

complete that there is no escape from the conclusion that within all

human probabilities the crime was committed by the accused and

none else; and

(4) the circumstantial evidence in order to sustain conviction must

be complete and incapable of explanation of any other hypothesis

than that of the guilt of the accused and such evidence should not

only be consistent with the guilt of the accused but should be

inconsistent with his innocence.

10. Keeping in mind these well recognized principles to be followed by

the Courts while dealing with a criminal case in which the guilt of the

accused is sought to be established through circumstantial evidence we

shall now proceed to examine the prosecution evidence in respect of the

various circumstances relied upon by the prosecution. The learned

Additional Public Prosecutor high-lighted before us the following

circumstances which according to him stood established conclusively and

which prove the guilt of the accused:-


i) H.V. Rao (the deceased) came to Delhi from Bombay on the

day of the incident i.e. 9th

Jan. 1984 and was staying in room no.802

in Siddharth Continental Hotel in Vasant Vihar, New Delhi.

ii) At about 6.45 p.m. on the day of the incident PW-1 Anand

Kumar, a Houseman in the hotel, saw the two accused armed with a

revolver and knife dragging the deceased in injured condition in the

corridor of 8th

floor of the hotel and taking him inside room no.802.

iii) On police reaching the hotel around 7.10 p.m. room no.802

was got opened from inside and in that room the two accused were

found present. Accused Rajneesh Kumar was found having a blood

stained revolver in his hand and accused Rajender Kumar was having

a blood stained knife in his hand at that time.

iv) The dead body of H.V. Rao with stab injuries on different parts

of the body was found lying in the bath-room of room no.802

v) From the pocket of accused Rajneesh Kumar one purse of the

deceased with his driving license and visiting cards was recovered.

vi) Accused Rajender Kumar was having a Seiko watch belonging

to the deceased.

vii) The clothes of the both the accused were having blood stains

and there was blood on the shoes also of accused Rajinder Kumar

when they were apprehended inside room no.802 of the hotel.

viii) The death of the deceased was homicidal.

ix) The autopsy surgeon had opined that the stab injuries found on

the body of the deceased were possible with the knife which accused

Rajinder Kumar was holding in his hand at the time of his

apprehension.

x) The accused had given false explanation for their presence in

the hotel in the evening of 9th

January,1984.

11. Regarding circumstances no. (i) and (iv) nothing was argued by the

learned counsel for the appellant Rajinder Kumar and rightly so since this

accused- appellant himself had admitted during the trial that the dead

body of the deceased was found in the bathroom of room no. 802 of hotel

Siddharth Continental and further that at the time of recovery of dead body

from there he himself was also present on the 8th

floor of the hotel. The

witness examined by him in defence(DW-2 Inder Kumar) also deposed

that on 7th or 8

th January,1984 Rajinder Kumar had told him that he would


be going to Siddharth Continental hotel in a day or two to meet one Maya

Rawat for getting a job. In any event, the prosecution had examined PWs

2, 16 and 17 to prove this circumstance and their evidence also clearly

establishes that the deceased had checked in hotel Siddharth Continental

on 9th January, 1984 around 6 p.m. PW-2 Chuni Lal during those days

was employed in the said hotel as a bell boy. He deposed that on 9th

January, 1984 his duty was on 8th

floor of the hotel and that day around 6

p.m. the deceased accompanied by one person (PW-16) had come there

and gone inside room no. 802. After some time the person accompanying

the deceased had come out of the room and then he along with that person

had come down to the lobby on the ground floor. He further deposed that

after about one hour Anand Kumar(PW-1), houseman, came to the lobby

and informed him that some incident had taken place on 8th floor and

further that at about 11 p.m. he(PW-2) was called upon to identify the

body of the deceased which was lying in the bathroom of room no. 802.

This witness further deposed that the dead body was of the same person

who had come to stay in room no. 802 at about 6 p.m. During his cross-

examination his statement to the effect that the deceased had come to the

hotel on 9th January, 1984 around 6 p.m. and had stayed in room no. 802

was not challenged and the same, therefore, stood admitted by the accused.

PW-17 is Mr. S.K. Gupta, who was employed as a Junior Executive in

Siddharth Continental hotel. He deposed that on 9th January, 1984 the

deceased had come to the hotel at about 5.45 p.m. along with his friend

Mr. Anand(PW-16) and he was sent to room no. 802 with bell boy Chuni

Lal and after about five minutes that bell boy and Mr. Anand had come


down while the deceased Mr. Rao had remained in the room. This

witness proved the registration card in respect of the deceased as Ex. PW-

17/A. Testimony of this witness also remained unchallenged in cross-

examination on behalf of the accused. PW-16 is Mr. M.S. Anand who

deposed that in the year 1984 he was working as a Director of

Consolidated Machine Pvt. Ltd. having its office in Lajpat Nagar, New

Delhi and that Company was selling agent of CME Industries, Bombay

and the deceased Mr. H.V. Rao was its Sales Manager. On 8th

April, 1984

he had received a call from Bombay that he should book a room for Mr.

Rao for two days at hotel Siddharth Continental which he did the same

night. He further deposed that on 9th January, 1984 Mr. Rao came straight

to his office at Lajpat Nagar from where they had gone to Palam and at

about 5.45 p.m. he had dropped Mr. Rao at Siddharth Continental hotel

where he was allotted room no. 802. His testimony to this effect also

remained unchallenged in his cross-examination on behalf of the accused

persons.

12. Similarly the counsel for the appellant Rajinder Kumar did not

dispute the fact that the deceased died a homicidal death(circumstance

no.(x). That circumstance is also even otherwise fully established by the

evidence of the autopsy surgeon PW-25 Dr. Chander Kant who had

conducted post-mortem examination on 10/01/84 and who proved his

report as Ex.PW-23/A. He deposed about the various ante-mortem injuries

found by him on the dead body of the deceased including three stab

injuries on the neck and left side of chest, described as injuries no. 3,6 and

7 in the report having been caused by a sharp edged weapon and which


were found to be sufficient to cause death in the ordinary course of nature.

The cause of death, according to PW-25, was ‘shock haemorrage and

asphyxia’ as a result of the injuries found on the dead body of the

deceased. The approximate time since death was opined to be between 15

to 18 hours. This witness was not cross-examined on any aspect on behalf

of the accused.

13. For establishing the most crucial circumstances no. (ii), (iii) and

(vii), which we are taking up together, the prosecution had relied upon the

evidence of PWs 1 to 4 and the investigating officer PW-27. PW-1 Anand

Kumar, was employed as a houseman in hotel Siddharth Continental in the

year 1984 and he is the complainant of this case as it was on his statement

that the police had registered the three FIRs. He deposed that on 9th

January, 1984 he was on duty as houseman on the 8th

, 9th

and 10th floors of

the hotel from 1 p.m. to 10 p.m. At about 7 p.m. he was present on the 9th

floor when he heard some voice and all of a sudden there was a

commotion on the 8th floor. He then immediately went to the 8

th floor and

found people running here and there and he also saw two persons dragging

one person into room no. 802. Since those two persons were armed he had

sought the assistance from number of persons to apprehend those two

persons. He further deposed that one person who was known to him

previously by face was present there along with another person at the 8th

floor and he asked them to keep a watch and not to let the person with

arms escape from there and thereafter he went to the lobby and informed

Chuni Lal(PW-2) about that incident and told him to inform the security

staff. He then returned to the 8th floor where the two persons whom he


had told to keep a watch were present near the door of room no. 802. He

further deposed that the police also arrived there and thereafter he along

with Ramanujan(PW-3) and Sethi(PW-4) and other persons entered room

no. 802 where dead body of one seth of Bombay, who was staying in that

room, was found lying in the bathroom and nobody else was found present

in the room at that time.

14. Since this witness did not identify the two accused persons to be the

two persons whom he had seen dragging the deceased inside room no. 802

he was permitted to be cross-examined by the Additional Public

Prosecutor. During the cross-examination by the prosecutor PW-1 did not

accept that the two accused persons present in Court were the persons who

had dragged the deceased inside room no. 802. When he was confronted

with his statement Ex. PW-1/A, based on which FIR of this case was

registered and which statement he admitted to have made to the police this

fact was found to be recorded therein. In that signed statement PW-1 had

even mentioned the names of the two accused persons as the culprits. PW-

1, however, had claimed that both the accused persons were those two

persons whom he had asked to keep a watch outside room no.802 and they

were standing near the door of room no. 802 when he had returned from

the lobby. He, however, admitted that the clothes of the accused were

blood stained at that time but he then clarified in his cross-examination on

behalf of the accused that their clothes had got smeared with blood when

he along with the accused had overturned the dead body of the deceased to

find out as to what injuries he had sustained. PW-1 also admitted that a

drum of the revolver was found lying outside the room.


15. In respect of the evidence of this witness the learned trial Court has

observed in its judgment that he was deliberately concealing the identity of

the culprits and that he was deposing falsely to that extent. After carefully

examining the evidence of PW-1 we find ourselves in full agreement with

these observations of the learned trial Judge. PW-1 had admitted having

made the first information statement Ex. PW-1/A to the police. In that

statement he had clearly claimed before the police that the two accused

persons had been seen by him dragging the deceased into room no. 802

and after some time both of them were found inside room no. 802 when

the police had the door of the room opened. There is nothing on record to

suggest that the investigating officer PW-27 SI L.N. Rao had forced this

witness to get such a statement recorded and we find no reason to

disbelieve the statement of this investigating officer made during his

evidence in Court that such a statement was made before him by PW-1

Anand Kumar. Although in his cross-examination it was suggested to

PW-27 that he had falsely implicated the accused in the present case but

simply putting such a suggestion to the investigating officer would not be

sufficient to accept that the accused had been falsely implicated. Strong

foundation s required to be laid by an accused who takes a plea of false

implication by the police. However, in the present case accused Rajinder

Kumar has not laid even a weak foundation to sustain the plea of his false

implication. Even otherwise none of the two accused had taken the stand

either while cross-examining the prosecution witnesses or during their own

statements under Section 313 Cr.P.C. that they had been told by PW-1 to

keep a watch over the two culprits or that they had handled the dead body


and because of that their clothes had become blood stained, as had been

deposed by PW-1. Therefore, it becomes clear that PW-1 has deliberately

not identified the accused persons as the persons who had dragged the

deceased in injured condition inside room no.802. We are also of the

view that if at all the two accused had been falsely implicated PW-1 would

have at least protested when they were over-powered by the police.

However, he does not even claim to have done that.

16. It was argued by the learned counsel for the appellant Rajinder

Kumar that the evidence of this witness cannot be relied upon at all for any

purpose in favour of the prosecution since he had been got declared hostile

by the prosecution and instead he supports the accused. This contention

cannot be accepted since it is now too well settled that evidence of a

prosecution witness who is cross-examined by the prosecutor also can be

relied upon in favour of the prosecution and in fact even in favour of the

accused if testimony of such a witness inspires confidence. So, we have

examined his examination-in-chief as well as his cross-examination

conducted by the prosecutor and the defence counsel to find out if his

evidence can be of help to the prosecution or the defence. It certainly

advances the prosecution case to the extent that two persons had dragged

the deceased inside room no.802 and at that time the deceased was

bleeding and the culprits were armed and a drum of the revolver was found

outside room no.802. His evidence is of no help to the accused since, as

noticed already, the accused themselves had not chosen to take the plea

which this witness had taken during his evidence to shield them.

17. The next material witness examined by the prosecution is PW-3 C.


Ramanujan who was the Chief Security Officer of the Siddharth

Continental hotel in January,1984. He deposed that when on the day of the

incident he went to 8th floor of the hotel on getting information about some

incident there he had seen some blood on the carpet at a distance of about

2 ft. from the door of room no.802 and he had also noticed one drum of a

revolver and one cartridge lying on the floor. Anand(PW-1) met him near

room no.802 and told him that a man was taken inside room no.802 by two

persons. The door of room no.802 was closed from inside and he

informed the police. He further deposed that the police came after about

five minutes and the police on arrival knocked at the door of room No. 802

and gave a warning to the persons inside to come out otherwise the door

would be broken open. After about three minutes the door was opened

and accused Rajneesh and Rajinder came out of the room(In cross-

examination on behalf of the accused PW-3 stated that the accused were

inside the room when its door was opened). Rajneesh was having a pistol

in his hand and Rajinder was holding a knife at that time and their clothes

were blood stained. Both of them were over-powered by the police. PW-3

further deposed that when the police entered the room the dead body of

Mr. Rao(the deceased) was found lying inside the bathroom. From

accused Rajneesh a purse was recovered in which there were visiting cards

and the driving licence of Mr. Rao besides Rs.2000/- in cash. As per this

witness a seiko watch(which according to the case of the prosecution

belonged to the deceased) was recovered from accused Rajinder.

18. To the same effect is the testimony of PW-4 Shri Deepak Sethi, who

was employed as Lobby Manager in Siddharth Continental hotel on the


day of the incident. He has also deposed that when the police had got

opened the door of room no. 802 the two accused were found present

inside and accused Rajneesh was holding a revolver in his hand and

accused Rajinder was holding a knife in his hand. He has also deposed

about the presence of the dead body of the deceased in the bathroom of

room no. 802 and also that clothes of both the accused were blood stained.

He has also supported the prosecution case in respect of the recoveries of

incriminating articles belonging to the deceased from the possession of the

accused persons.

19. The evidence of PWs 3 and 4 remained unshaken during their cross-

examination on behalf of the accused persons. Both of them have fully

corroborated each other’s version. As far as presence of blood on the

clothes of the accused is concerned the same was not disputed during the

cross-examination of any of these two witnesses. As noticed already, PW-

1 Anand Kumar had claimed that the clothes of the accused persons had

got smeared with blood as they had handled the dead body of the

deceased. However, as also noticed already, none of the accused had

taken such a plea. In fact, the plea of the deceased/accused in his

statement under Section 313 Cr.P.C. was that the police had smeared his

clothes with blood. For rejecting the evidence of these two prosecution

witnesses the argument advanced by the learned counsel for the appellant

Rajinder Kumar was that both these witnesses were interested witnesses

being employees of the hotel and they had deposed falsely in order to

protect the reputation of the hotel and, therefore, their evidence should be

rejected. However, we are not persuaded to accept this argument.


Nothing has been brought on record in the lengthy and searching cross-

examination of these two witnesses from which it could be inferred that

they had any axe to grind against any of the two accused persons. It was

also argued by learned counsel for the appellant Rajinder Kumar that the

version of these two witnesses regarding the presence of the accused inside

room no. 802 is highly improbable. It was contended that the accused

could have easily escaped from the place of incident after committing the

murder if actually they had committed the murder. In our view it is quite

possible that the accused persons might not have come to know that they

had been seen by someone dragging the deceased inside room no. 802 and,

therefore, they might have remained inside the room without realizing that

they had been seen by someone and the police had been informed.

Therefore, there is nothing improbable about the prosecution case to the

effect that both the accused were found inside the room where the dead

body of the deceased was recovered.

20. The third witness to depose about the presence of the accused

persons inside room no. 802 is the investigating officer PW-27 Inspector

L.N. Rao. He deposed that when he reached the Siddharth Continental

hotel on getting the information about some incident there he had gone to

8th

floor where PW-1 Anand Kumar, PW-3 Ramanujan and PW-4 Deepak

Sethi were also present in front of room no. 802 and there he had noticed a

drum of a revolver containing a cartridge and one live cartridge lying on

the carpet blood was also noticed on the carpet. On being informed by

Anand Kumar that he had seen two persons dragging one half naked

person inside room no. 802 he(PW-27) warned the inmate of room no. 802


to open it otherwise the police would break open the lock. After few

minutes the door was opened from inside and then he along with Anand

Kumar, C. Ramanujan and Deepak Sethi entered the room and both the

accused were found present inside. Accused Rajneesh Kumar was having

a revolver without a drum and accused Rajinder Kumar was holding an

open knife in his hand. This witness then went on to depose about the

recovery of the dead body of the deceased from the bathroom of that room,

recovery of one purse containing visiting cards and driving licence of the

deceased and Rs.2000/- in cash and also the recovery of a Seiko watch

from accused Rajneesh Kumar and also about recovery of another Seiko

watch(Ex.P-17) from accused Rajinder Kumar. Nothing could be extracted

from this witness also in his cross-examination on behalf of the accused

persons which could discredit him. Although it was suggested to him that

he had falsely implicated the accused persons but we see no reason to

accept such a stand taken by the accused persons. This police officer also

had no axe to grind against any of the two accused persons. We have

already observed that the accused laid no foundation to sustain the plea of

their false implication. In fact, his statement to the effect that when he had

entered inside room no.802 accused Rajneesh Kumar was holding a

revolver without its drum. This witness as also PWs 1, 3 and 4 had

claimed that they had seen one drum of a revolver lying outside room

no.802 and supports the prosecution case that

21. From the evidence of PWs 1, 3, 4 and 27 it stands established

beyond reasonable doubt that the accused persons were inside room no.

802 of Siddharth Continental hotel where the dead body of the deceased


was lying inside the bathroom. The clothes of the accused persons were

blood stained at that time. These incriminating circumstances lead to the

only conclusion that the deceased had been murdered only by the accused

persons and none else. There are no missing links in the prosecution case

and the circumstances established are consistent only with the hypothesis

of the guilt of the accused and inconsistent with his innocence.

22. The prosecution had also sought to estabish that one purse

belonging to the deceased, which contained his visiting cards, and driving

licence of the deceased besides Rs. 2000/- in cash was recovered from the

possession of the deceased – accused Rajneesh. Although nothing was

argued in respect of the evidence in respect of that recovery by the learned

counsel for appellant Rajinder Kumar but in order to satisfy ourselves

regarding the conviction of the accused for the offence of robbery we

examined the evidence of the prosecution witnesses, namely, PW-3 C.

Ramanujan, PW-4 Deepak Sethi and the investigating officer PW-27 SI

L.N. Rao and we are fully convinced about the recovery of the belongings

of the deceased from the deceased accused. The prosecution had also

sought to establish that from the possession of accused- appellant Rajinder

Kumar one watch(make seiko) belonging to the deceased was recovered.

In respect of that recovery, which was also sought to be established

through evidence of PWs 3, 4 and 27, learned counsel for accused

Rajinder Kumar had submitted that this recovery evidence should not be

accepted for being used against this accused since it is the prosecution’s

own case that one Seiko watch was recovered from the possession of

accused Rajneesh Kumar and another Seiko watch was recovered from


accused Rajinder Kumar also but the prosecution has not led any evidence

to show that both the watches were put up for identification by the wife of

the deceased(PW-5) Ms. Vineeta and the Magistrate(PW-10), who

conducted the identification proceedings in respect of the Seiko watch(Ex.

P-17), had also deposed that there was only one watch of Seiko put up for

identification and the same was identified by Ms. Vineeta. Therefore,

counsel contended, the identification of the Seiko watch Ex.P-17 in the

identification proceedings by the wife of the deceased cannot be

considered to be an incriminating circumstance against accused Rajinder

Kumar. Learned Additional Public Prosecutor did not dispute this fact but

he submitted that even if this circumstance is not used against accused

Rajinder Kumar the other circumstances are sufficient to sustain his

conviction. On this aspect we find force in the argument of the learned

counsel for appellant Rajinder Kumar and we are inclined to give benefit

of doubt to this accused in respect of the circumstance of recovery of

Seiko watch from his possession for the afore-said reasons put forth by his

learned counsel. It is an admitted case of the prosecution that from both

the accused one Seiko watch was recovered but there is no explanation

forthcoming as to why only one of those watches was put up for

identification. That introduces some element of doubt as far as this part of

the prosecution case is concerned. However, even then this accused cannot

escape from the consequences of other circumstances which we have

already found to have been proved successfully by the prosecution and

which inevitably lead to the guilt of accused Rajinder Kumar and we are

more than convinced that that he was also involved in the incident of


murder-cum-robbery.

23. Even though there was no further link in the chain of circumstances

required to be established by the prosecution for establishing its case, there

is any case another circumstance which can be pressed into service by the

prosecution as an additional link in the already established chain of

circumstances. Appellant Rajinder Kumar was expected to explain his

presence at the scene of crime which was a five star hotel where in normal

course he was not expected to be present. He had taken a plea in defence

that he had gone to Siddharth Continental hotel on the day the of incident

to meet one Ms. Maya Rawat who was working in that hotel and further

that when the incident had taken place he was with her in the lobby and

from there both of them had gone to the 8th floor after noticing commotion

in the hotel and on the 8th floor a dead body was lying on the floor of a

room. He along with Maya was standing outside the room when police

came there and took him to police station for investigation and then falsely

implicated him in this case. He has, however, not even examined Ms.

Maya Rawat to support his version which shows that this plea taken by

him at the time of recording of his statement under Section 313 Cr.P.C.

was a false plea. It is now well settled that in a criminal case based on

circumstantial evidence if an accused takes a false plea that circumstance

can also form an additional link in the chain of circumstances which

otherwise the prosecution is able to establish.

24. For the fore-going reasons, we are of the view that this appeal qua

accused–appellant Rajinder Kumar must fail and the same is hereby

dismissed. Resultantly his conviction on different counts and the


sentences awarded to him by the trial Court are hereby confirmed.

25. Since appellant Rajinder Kumar was granted the benefit of

suspension of the sentences of imprisonment awarded to him by the trial

Court and he was released on bail during the pendency of the appeal his

bail bonds now stand cancelled and he shall be taken into custody

forthwith.

P.K. BHASIN,J

BADAR DURREZ AHMED,J

July 22, 2010

pg/sh

Documents

Judgment Kumar...Crl. Appeal No. 141/1994 Page 2 of 21 3. For deciding the fate of the surviving accused-appellant Rajender Kumar the prosecution case in respect of the incident of