+ CRIMINAL APPEAL NO. 141 of versus -

Transcription

1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Judgment delivered on: 22 nd July, 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) P.K.BHASIN, J: Judgment 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 30 th April, 1994 and order on sentence dated 23 rd 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 9 th January, Appellant no. 1 Rajneesh Kumar died during the pendency of this appeal which has consequently already abated qua him. Crl. Appeal No. 141/1994 Page 1 of 21

2 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 9 th 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 8 th floor of the hotel they went to 8 th 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 Crl. Appeal No. 141/1994 Page 2 of 21

3 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 chargesheets 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 chargesheets 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 Crl. Appeal No. 141/1994 Page 3 of 21

4 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 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 30 th 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 23 rd 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 Crl. Appeal No. 141/1994 Page 4 of 21

5 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 9 th January, 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. Crl. Appeal No. 141/1994 Page 5 of 21

6 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:- Crl. Appeal No. 141/1994 Page 6 of 21

7 i) H.V. Rao (the deceased) came to Delhi from Bombay on the day of the incident i.e. 9 th Jan 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 8 th 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 9 th January, 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 8 th floor of the hotel. The witness examined by him in defence(dw-2 Inder Kumar) also deposed that on 7 th or 8 th January,1984 Rajinder Kumar had told him that he would Crl. Appeal No. 141/1994 Page 7 of 21

8 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 9 th 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 9 th January, 1984 his duty was on 8 th 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 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 8 th 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 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 crossexamination his statement to the effect that the deceased had come to the hotel on 9 th 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 9 th 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 Crl. Appeal No. 141/1994 Page 8 of 21

9 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 crossexamination 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 8 th 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 9 th 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 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 Crl. Appeal No. 141/1994 Page 9 of 21

10 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 9 th January, 1984 he was on duty as houseman on the 8 th, 9 th and 10 th floors of the hotel from 1 p.m. to 10 p.m. At about 7 p.m. he was present on the 9 th floor when he heard some voice and all of a sudden there was a commotion on the 8 th 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 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 8 th 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 8 th floor where the two persons whom he Crl. Appeal No. 141/1994 Page 10 of 21

11 had told to keep a watch were present near the door of room no 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 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. Crl. Appeal No. 141/1994 Page 11 of 21

12 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 Crl. Appeal No. 141/1994 Page 12 of 21

13 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. Crl. Appeal No. 141/1994 Page 13 of 21

14 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 8 th 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 crossexamination 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 Crl. Appeal No. 141/1994 Page 14 of 21

15 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 crossexamination 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. Crl. Appeal No. 141/1994 Page 15 of 21

16 Nothing has been brought on record in the lengthy and searching crossexamination 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 8 th 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 Crl. Appeal No. 141/1994 Page 16 of 21

17 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 Crl. Appeal No. 141/1994 Page 17 of 21

18 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 Crl. Appeal No. 141/1994 Page 18 of 21

19 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 Crl. Appeal No. 141/1994 Page 19 of 21

20 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 8 th floor after noticing commotion in the hotel and on the 8 th 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 Crl. Appeal No. 141/1994 Page 20 of 21

21 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 July 22, 2010 pg/sh BADAR DURREZ AHMED,J Crl. Appeal No. 141/1994 Page 21 of 21