Judgment:
Madan B. Lokur, J.
1. This appeal is directed against the judgment and order dated 18th May, 2002 passed by the learned Additional Sessions Judge in Sessions Case No. 82/1999. Before the Trial Court, there were two accused persons - Ashok Kumar and Sanjeet. In so far as Ashok Kumar is concerned, he was convicted of offences punishable under Sections 302 and 394 of the Indian Penal Code (for short the IPC) while Sanjeet was acquitted. By an order dated 18th May, 2002, Ashok Kumar was convicted to undergo a sentence of imprisonment for life and to pay a fine. Under the circumstances, this appeal has been preferred only by Ashok Kumar.
2. The facts of the case are not particularly complicated in as much as they concern the murder of Kumud Khaitan. She was a spinster living with her father at C-140, defense Colony (First Floor) and was found murdered on the morning of 21st August, 1998. Some cash of a little over Rs. 2 lakhs which was given to her by her brother the previous evening was missing.
3. The case brought out by the prosecution is that Kumud Khaitan and her father Durga Das Khaitan were living at C-140, defense Colony in a flat on the first floor. The second floor was occupied by the landlord of the premises while the ground floor and basement were vacant. Kumud Khaitan had a brother, Jagrit Khaitan, who was living across the road in C-160, defense Colony. She also had a relative called Deepak Narain who was at that time living in Noida.
4. Jagrit Khaitan and his father were carrying on some business for which, occasionally, Jagrit had to go out of Delhi. If the need arose on such occasions, he would deliver some cash received from the business for safe keeping with Kumud Khaitan. On 20th August, 1998, Jagrit Khaitan left Delhi for Bombay and he sent a sum of Rs. 2,03,390/- with his driver Suresh Chand for being delivered to Kumud Khaitan. There is no dispute that Suresh Chand handed over the amount to Kumud Khaitan. According to the prosecution the cash was handed over in the presence of both the domestic servants present in the house, that is, the Appellant and Kishan Ram (although this is denied by the Appellant). Kumud Khaitan then put the cash in her almirah.
5. The arrangement between the two servants was that one of them would stay in the premises on alternate days. In keeping with this, on 20th August, 1998, Kishan Ram left the house after finishing his duties and the Appellant was required to stay back and remain in the servants quarter.
6. Some time at night (between 10.00 pm and 11.00 pm) the Appellant is said to have taken the key of the back door of the property and had gone out on his scooter. He came back a little later but left the back door unlocked, but bolted from inside. This was noticed by the security guard Rajiv Jha. Thereafter, the Appellant sat with the security guard and they talked for quite some time, till late at night.
7. It appears that Kumud Khaitan had the habit of going out for a walk in the middle of the night. On the night of 20th August, 1998 / early morning of 21st August, 1998, she came downstairs and took a walk at about 1.00 am and after about half an hour she went back to her flat and locked the door. Although it is not very clear, but it appears from the testimony of Rajiv Jha that the Appellant was with him at that time.
8. According to the prosecution, Sanjeet and the Appellant managed to gain entry to the flat and hid therein to steal the cash. It seems that they were discovered by Kumud Khaitan and, thereforee, they attacked her with a knife and caused some injuries as a result of which she died. They then took the cash from the almirah and left. Sanjeet is said to have gone back to his house in Zamrud Pur and the Appellant went back to his servants quarter.
9. The next morning when the other domestic servant - Kishan Ram - came at about 6.00 am, he rang the door bell of the flat but there was no response. After some time, he informed the chowkidar Rajiv Jha and the Appellant and sought their assistance to enter the house. The three of them kept ringing the bell, knocking and banging on the door, but to no effect. Thereafter, the Appellant went across to the house of Jagrit Khaitan and rang up Kumud Khaitan's relative Deepak Narain and informed him that no one was opening the door of the flat. Deepak Narain said that he would reach the flat as soon as possible. By the time he reached the flat, it was around 8.00 am and Durga Das Khaitan, the father of Kumud Khaitan had already opened the door. The Appellant and others went into the flat and discovered the dead body of Kumud Khaitan. The family doctor was called and he indicated that Kumud Khaitan had died an unnatural death. Jagrit Khaitan was informed of the developments in Bombay and he took a flight back to Delhi immediately arriving around lunch time.
10. The prosecution further says that during the course of investigations and interrogation, the Appellant confessed to the crime the same day and disclosed that the knife used to kill Kumud Khaitan was lying in the kitchen and at his instance the blood stained knife was recovered. He also produced the blood stained clothes that he was wearing at the time of committing the crime. He also led the police and Jagrit Khaitan to the house of Sanjeet where the entire cash was recovered.
11. On these broad facts, a challan was filed under Section 173 of the Code of Criminal Procedure (for short the CrPC). On 22nd March, 1999, the following three charges were framed against the Appellant and Sanjeet -
That on the night of 20 & 21.8.1998 in H. No. C-140, First Floor, defense Colony within the jurisdiction of P.S. defense Colony you both in furtherance of your common intention robbed Smt. Kumud Khaitan of Rs. 203390/- and thereby you both committed an offence punishable Under Section 392/34 IPC and within my cognizance.
Secondly, on the aforesaid date, time and place you both in furtherance of your common intention inflicted injuries to Kumud Khaitan, due to which she died and thereby you both committed an offence punishable Under Section 302/34 IPC and within my cognizance.
Thirdly, on 21.8.98 both of you got recovered a sum of Rs. 203390/-, which you have dishonestly retained knowing the same to be the robbed property and thereby you both committed an offence punishable Under Section 411/34 IPC and within my cognizance.
Both the Appellant and Sanjeet pleaded not guilty and claimed trial.
12. Quite clearly, there was no eye witness to the crime and so the case is based on circumstantial evidence. After recording the testimony of all the witnesses and hearing Learned Counsel, the learned Trial Judge noted the following 11 circumstances, which, in his opinion, form a complete chain of events which point unerringly to the guilt of the Appellant. The circumstances are as follows:
1. Cash of Rs. 2,03,390/- was given to Kumud Khaitan on the fateful night and accused Ashok Kumar was aware of giving the cash.
2. Kumud Khaitan had two domestic servants, one Kishan Ram and other accused Ashok Kumar. On the night when murder had taken place Kishan Ram had gone to his house and only Ashok Kumar was left behind.
3. Accused Ashok Kumar took the key of the back door from the guard and left the back door open that night.
4. Kumud Khaitan was seen alive on that night up to 1.15 a.m.
5. Dead body of Kumud Khaitan was discovered near the bathroom of the guest room of the flat around 8.00 a.m. next day. Nobody was opening the door of the flat from 6.00 a.m. onwards.
6. Accused Ashok Kumar made a confession of his guilt in the presence of witnesses, when all the servants were being interrogated.
7. Accused Ashok led to recovery of blood stained clothes which he was wearing at the time of crime.
8. Accused Ashok led to the recovery of blood stained knife which was used at the time of commission of offence.
9. Accused Ashok led the police to his house at Zamrud Pur and to the recovery of the amount of Rs. 2,03,390/-.
10. Report of CFSL and Serological Analysis show that the blood on the clothes of accused, which accused Ashok got recovered, was of the same blood group as that of the deceased.
11. The post-mortem report shows that injury No. 5 present at the throat/neck of deceased was sufficient to cause death in ordinary course of nature.
13. Learned Counsel for the Appellant argued that broadly the circumstances mentioned by the learned Judge are correct but in respect of circumstances No. 3, 5 and 11 there was considerable doubt and they cannot be held to be conclusive so as to find the Appellant guilty of the offences for which he was charged.
14. It is submitted with regard to circumstance No. 3, and we think quite rightly, that even if the Appellant had taken the key of the back door from the guard and left it open when he went out on the night of 20th August, 1998 on his scooter, the testimony of the guard shows that the back door of the property, though not locked, had been bolted from inside. That being so, in the normal course it would not have been possible for anyone to enter through that door after the Appellant returned. Moreover, if the door was unlocked, and it was noticed as such, there was no reason for the security guard Rajiv Jha not to have locked it, unless he too was involved in the crime which is not the case of the prosecution. thereforee, from the testimony of the security guard, it can be assumed, at best, that Sanjeet came to the property Along with the Appellant.
15. However, there is nothing on record to suggest that Sanjeet came along with the Appellant when he had gone out between 10.00 pm and 11.00 pm and if he did where was he hiding after his arrival in the premises. We also find that according to the security guard Rajiv Jha the Appellant returned through the back door, but in his statement under Section 313 of the CrPC the Appellant stated that he did not re-enter the premises through the back door but entered from the front door. This is what the Appellant had to say -
Q. 4. It is in evidence against you that when Rajeev Kr. Jha came on duty on 20th July '98, you went somewhere on your two wheeler scooter and came back after 20-25 minutes from back gate. What you have to say?
Ans. It is correct that I had gone on my two wheeler scooter. I had gone to mkt. for bringing curd for houselady. I had come back after 20-25 minutes from the front door and not from back door.
This aspect of the case has not been adverted to, let alone considered by the learned Trial Judge.
16. In Rattan Singh v. State of Himachal Pradesh : 1997CriLJ833 the Supreme Court held as follows:
Examination of the accused under Section 313 of the Code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for Criminal Courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the Court in appreciating the entire evidence adduced in the Court during trial.
17. Similarly in State of U.P. v. Lakhmi : 1998CriLJ1411 , the Supreme Court considered the effect of the statement of an accused under Section 313 of the CrPC and held that the examination of an accused is not a ritual in a trial, nor is it a mere formality - it has a salutary purpose. The Supreme Court then observed -
It enables the Court to be apprised of what the indicated (indicted) persons has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some Explanationns to in criminativecircumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defenses. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case.
18. If it is correct that the Appellant entered the premises from the front door, he would have been noticed by the security guard, otherwise not. From the available testimony, it is difficult to say whether the Appellant actually entered the premises from the back door or from the front door and if he entered from the back door with Sanjeet, then where was Sanjeet for the next couple of hours or so. In the absence of any evidence, we may presume that Sanjeet was hiding somewhere in the property. While this presumption may not be unreasonable, it is nevertheless a presumption that is required to be made in the absence of any cogent evidence in this regard.
19. In so far as circumstance No. 5 is concerned, Durga Das Khaitan was the only other occupant of the flat. With all the banging that was going on the main door of the flat from 6.00 am to 8.00 am he still did not open the door. There is absolutely no Explanationn for this mysterious conduct and the Investigating Officer did not even bother to find out why. It is not as if Durga Das Khaitan was an invalid or bedridden. In fact, Jagrit Khaitan has denied the suggestion that his father was confined to bed. From the evidence of Jagrit Khaitan, it appears that he was doing business jointly with Durga Das Khaitan and that Durga Das Khaitan used to visit the factory at Okhla occasionally, but he generally used to visit the head office at Shakurbasti, Punjabi Bagh. Under the circumstances, it is completely inexplicable why Durga Das Khaitan who was leading an active life did not open the door from 6.00 am to 8.00 am on 21st August, 1998. We find this to be a very glaring omission in the investigation casting a serious doubt on its integrity. It is indeed remarkable that the only person who could possibly have been a disinterested eye witness to the crime was not even questioned by the Investigating Officer.
20. In so far as circumstance No. 11 is concerned, it is rather strange that there is nothing to suggest that injury No. 5 which was sufficient to cause the death of Kumud Khaitan could have been caused by the knife that was recovered at the instance of the Appellant. Absolutely no one asked this question and in the absence of any evidence to show that the recovered knife could have caused the injury, we are asked to assume that it was the weapon of offence. Unfortunately for the prosecution, we cannot make such an assumption.
21. It has come on record that one chance finger print was lifted from the showcase where Kumud Khaitan was murdered but no specimen finger print, either of the Appellant or of Sanjeet was taken for comparison. We do not know whose finger print was lifted from the showcase. If it was of a person other than Sanjeet and the Appellant, quite clearly, the offence could have been committed by that third person. Such a possibility cannot be ruled out given the facts and circumstances of the case.
22. At this stage, we may note the decision of the Supreme Court in Narsinbhai Haribhai Prajapati v. Chhatrasinh AIR 1977 SC 1753. In that case, the Supreme Court made an assumption in favor of the prosecution that the accused had some motive for committing the crime, that blood stained clothes were seized from the person of the accused and dharias were also seized from the residence of the accused. The Supreme Court concluded that even these circumstances were wholly insufficient for sustaining the charge of murder because of some discrepancies in the evidence of two eye witnesses. In so far as the present case is concerned, not only there is no eye witness but there are unexplained questions that have arisen on the basis of the testimony of the witnesses for the prosecution. Mere recovery of some incriminating material at the instance of the Appellant does not, in our opinion, lead to a definite theory that the murder of Kumud Khaitan could have been committed only by the Appellant and no one else.
23. Looking to all these unresolved issues that have surfaced in the testimony of witnesses and during the course of arguments before us, we find that it cannot conclusively be said that the Appellant was guilty of the offences that he was charged with.
24. Under the circumstances, we have no option but to set aside the impugned judgment and order and acquit the Appellant by giving him the benefit of doubt. The appeal is allowed. The Appellant be set at liberty forthwith unless he is required in some other case.