THE COMM. OF INCOME TAX RAJAHMUNDRY vs. M/S B.KRISHNA MURTHY AND OTHERS

The case of the prosecution is that A-1 was infatuated with SS and, although he was married, he told SS that if she did not become his, he would even go to the extent of killing her. A-1 is said to have been maintaining a diary with writings to the above effect. A-1 also suspected that SS was having an affair with SK. A-1 hired a private detective, Vikram Singh (PW- 8), on 20th March 1996 to investigate the movements of SS on the pretext of a potential matrimonial alliance for his brother Anil Gupta with her. Despite PW-8 telling A-1, after 15 days of investigation, that SS had a good moral character, A-1 insisted that SS was having an affair with SK and insisted on continuing the surveillance on SS.

A-1 planned to have a franchise of PPL opened in Bombay and that SS should run that franchise. On 5th June 1996, A-1 contacted PW-8 to tell him not to subject SS to surveillance on 6th June 1996 as it was her birthday but to continue it thereafter.

Meanwhile, in January 1996, air tickets were arranged by A-1 for SS and her family for travel to Bangalore and back. However, it transpired that this

The case of the prosecution is that SK was murdered between 6th and 7th June 1996 and his body was abandoned somewhere near Hodal in Haryana where it was eventually found. Close to his body, the Maruti 1000 car belonging to SK was also found abandoned alongside a kachha road.

The bodies of SS and DG were found on 9th June 1996 on the roadside within the jurisdiction of PS Sarai Chola at Muraina. Both bodies were found in a highly decomposed state and had been partially eaten by animals.

According to DW-1, after 6th June 1996, he started receiving threatening calls at his house for ransom money. Similar calls were also received by Anil Gupta. DW-1 is also supposed to have produced before the IO, the Driver‟s License („DL‟) of SK which he stated he found at the site of his father‟s office at MCD, Okhla. Acting on the above complaint, FIR No.340/1996 (Ex.PW-4/B) was registered by PW-133. An inspection was

These seizures were affected in the presence of a Constable Ashok Kumar (PW-4) and ASI Siri Upadhyay (PW-6). Meanwhile, Shobha Kaul (PW-83), wife of Dr. Kaul, was informed by the wife of A-1 that the DL of SK had been found at the MCD office and that DW-1 had lodged a missing report. PW-83 stated that her husband left in a Maruti 1000 on 6th June 1996 to Noida to shoot a serial.

The father of SS, Sukumar Saha (PW-10), told the police that SK and DG had come to his house between 6:30 and 7 pm on 6th June 1996 and SS had left with them in a car being driven by SK. He later called Shobha Kaul (PW-83) between 11 and 11.30 pm and told her that he was not aware of the whereabouts of SK, SS and DG after making enquiries. He later informed her of SK's DL having been found in the MCD office of A-1.

Rajesh Gupta (PW-11), the husband of DG, also called PW-83 when DG did not return by 7 pm on 6th June 1996 and there was no reply on the phone at her office. PW-11 was directed to PS C.R. Park and he was finally re-

Thereafter, PW-141, along with SI R.S. Dhaka (PW-100) reached PS Sahar, Bombay around 2.30 pm and contacted the SHO of PS Sahar. In the meanwhile, Assistant Police Inspector („API‟) D.G. Sankhe who was posted at PS Sahar, Bombay and who had been asked not to arrest A-1 but keep a guard, reached the Leela Kempinski Hotel and contacted Sameer, the Manager there, who also confirmed that he had received a message to that effect. API D.G. Sankhe (who was examined as DW-16 on behalf of A-1) then came back to PS Sahar. It appears that DW-16 in fact recorded a statement of A-1 (DW-16/A).

It has come in the evidence of PW-141 that when he, along with PW- 100, reached PS Sahar at around 2:30 pm on 10th June 1996, A-1 was already found present there and he was interrogated there. Thereafter, A-1 was taken to Room No.408 at Hotel Leela Kempinski where four glasses and a bottle of whiskey were found on a table. The crime team was called and they picked up certain chance prints. On learning that A-1‟s BMW car

A-1 was formally arrested on 11th June 1996 in Delhi. At 3.30 pm on 11th June 1996, PW-141 brought A-1 to the casualty ward at AIIMS, New Delhi for examination. Dr. S.K. Gupta, the Senior Resident who was posted there (and who was later examined as DW-13 on behalf of A-1), stated that A-1 was complaining of pain over the back of the chest and the sacrum area. A-1 also complained of chest pain and a phobia of living alone. On examination, DW-13 found tenderness over the back, injection prick marks on both arms of A-1. He found bruises on the posterior aspect of the chest and swelling on the back of the chest. He opined that the injuries were more than 48 hours old and were caused by blunt force. He described them as 'true bruises' which were not 'self-inflicted'.

The four charges framed by the trial Court on 4th March 1998 read as under: “Firstly, that on and before 5.6.1996 at Mohan Hotel, Ashok Vihar, Delhi, you all had entered into a criminal conspiracy to abduct and murder Dr. Sunil Kaul, Ms. Sujata Saha and Mrs. Deepa Gupta and thereafter to cause the evidence of the commission of that offence to disappear with the intention of screening yourselves from legal punishment and thereby you committed an offence punishable U/s 120-B of the IPC within my cognizance.

There were separate additional charges under Section 411 IPC qua some of the co-accused being found in possession of stolen property. A total of 143 witnesses were examined on behalf of the prosecution.

A-1 submitted a written statement under Section 233 Cr PC in the trial court where inter alia he admitted that due to the good behaviour of SS “I started loving her but there was no lust involved. She also respected me and showed affection towards me. Consequently she had virtually a hold over me.” According to A-1, as they got closer, SS advised him that he should invest a big sum of money for a new branch of PPL at Vikas Marg; that he was promised to be paid 36% interest thereon and alternatively, he should operate a franchise at the new project. His statement thereafter reads as under: “After Sujata Saha consulted Dr. Sunil Kaul and Deepa Gupta, it was decided that they would visit the MCD office Okhla to meet me at 7.30 p.m on 6.6.96. I had kept the draft agreement “Agreement for Project Associate” ready. I had also with me my cheque book and in the brief case there

In the above statement, A-1 also referred to his medical examination at

The trial Court held that circumstance (i) above was proved by the prosecution. However, as regards the circumstance (ii) above, the trial Court held that what was proved was that a diamond ring was purchased but not that it was purchased by A-1. As regards circumstance (iii) above, it was held that while A-1 got purchased the air tickets for the journey from Delhi to Bangalore and back in the name of SS and her family, the journey was never undertaken by her and only the torn tickets were recovered from her office drawer.

Circumstance (iv) was held by the trial Court not to be proved. The trial Court was not inclined to believe that A-1 ever engaged PW-8 for keeping SS under surveillance. Likewise, circumstance (v), regarding A-1 having followed SS to Tirupati Balaji, was held not to be proved. Circumstance (vi) above was held again to be not proved. It was held that even if A-8 had stayed at Hotel Tirath, it did not mean that A-8 had followed SS and that too

As regards circumstance (vii), the trial Court held that though, from the mere fact that calls were made, it could not be concluded that A-1 had threatened SS or expressed his love for her, in his statement under Section 313 Cr PC, A-1 had admitted that he had a soft corner for SS and she had a hold over him. Therefore, this showed that A-1 was in love with SS. However, the trial court did not accept that SS had reciprocated it. It observed: “It has to be kept in mind that the position of Sujata Shah was vulnerable as she was merely an employee in a private concern in which accused Subash Gupta had made investment. She was not in a position to annoy or rebuke to a good client of the concern in which she was working. She could not have reflected her disappointment by throwing tantrums and could not convey her disapproval of the attempts made by Subash Gupta for developing an intimacy by maintaining silence.”

As regards circumstance (viii) regarding letters written by A-1 to show his love for SS, the trial Court discussed the depositions of PWs-103, 108, 133 and 143. It analysed the writings themselves in depth and concluded as under: “It is established on record that accused Subash Gupta was obsessed with Sujata Shah and have a crush over her and with whom he wanted to develop intimacy and the efforts made by him in this regard were unfruitful but nothing beyond that. Even in the statement under section 313 Cr.P.C. accused Subash Gupta had admitted that he had an inclination short of lust and infatuation towards Sujata Shah.”

As a result, the trial Court concluded that “it stands proved on record that it is accused Subash Gupta who was last seen in the company of the three deceased.”

On the issue of association between the accused persons, the trial Court came to the conclusion that although some of the accused may have been associated with each other, their involvement in the commission of the crime of killing the three deceased could not be established by the prosecution beyond all reasonable doubt. In this process, the trial Court examined the testimonies of the forensic witnesses and finger print experts.

The trial Court then discussed the circumstance of recovery of the BMW car from Hotel Leela Kempinski, Bombay belonging to A-1. In particular, the trial Court discussed the recovery of the fibres (Ex.P-27 to P-30) from the car which matched with the fibre of the bed sheets on which bodies of SS and DG were wrapped. As regards the stay of A-1 and A-8 at the Leela Hotel, the trial Court concluded that while it stood established from the chance prints recovered from the glass in Room No.408 that A-1 stayed there and he had also been seen by a security guard, there was no evidence to show that A-8 was found in that room. The stay of the co-accused persons at the hotel during the period of the commission of the crime and their arrest was held not to have been proved in the manner alleged by the prosecution.

Subash Gupta infatuated with Sujata Shah. This circumstance is also proved.

Subash Gupta purchased a diamond ring for Sujata Shah to be presented on her birthday on 6.6.96. This circumstance is not proved.

Subash Gupta purchased air tickets for Sujata Shah and her family. This circumstance is proved.

Subash Gupta engaged a private detective to have surveillance on her and ascertain her relations, if any, with Doctor Kaul. This circumstance is not proved on record.

Followed Sujata Shah at Balaji. This circumstance is not proved.

Got followed Sujata Shah at Shirdi by accused Ravi Prakash. This circumstance is too not proved.

Subash Gupta used to make calls to Sujata Shah from his cell phone at her office as well as her residence. This circumstance is proved.

Wrote letters to Sujata Shah expressing her love. This circumstance is not proved.

Accused Subash Gupta threatened to kill Sujata Shah if he does not get her, which threat was conveyed through writings made in a diary presented by him to Sujata Shah. A diary was presented to Sujata Shah by SUbash Gupta, this part of the circumstance is proved but as far as threat is concerned that is not proved.

The accused persons met at Hotel Mohan to carry out conspiracy of kidnapping and murdering Sujata Shah, Deepa Gupta and Doctor Kaul. This circumstance is not proved.

Meeting between Subash Gupta on one hand and Deepa Gupta, Sujata Shah and Doctor Kaul fixed at MCD office on 6.6.96. This circumstance is proved that the meeting was fixed on 6.6.96 at MCD office.

Accused Subash Gupta last seen in the company of deceased at MCD office. This circumstance is proved that accused Subash Gupta was last seen in their company at MCD office.

Doctor Kaul, Deepa Gupta and Sujata Shah whisked away from MCD office by all the accused persons- regarding this circumstance presence of accused person other than accused Subash Gupta at MCD office not established.

Accused Hemant Kalra purchased Diazepam injections from Super Bazaar LNJP hospital and injected Doctor Kaul, Sujata Shah and Deepa Gupta. This circumstance is not proved.

Recovery of driving licence of Doctor Kaul from MCD office by Nitin Gupta. This circumstance is proved.

Accused Subash Gupta was not available since after the meeting at MCD office at his house and had disappeared. This circumstance is proved.

Accused Ravi Prakash a member of PPL. This circumstance is not proved.

Accused Subash Gupta was knowing accused Ravi Prakash. This circumstance is not proved.

Accused Ravi Prakash stayed at the house of accused Subash Gupta. This circumstance is also not proved on record.

Accused Deepak Dass, Kamal Shailey and Vijay Mohan arrested from Baroda. This circumstance is proved.

Association between Ravi Prakash and accused Kamal @ Pinki being arrested together from Meerut is a proved circumstance.

Association of accused Subash Gupta and other accused persons is not a proved circumstance.

Accused Ravi Prakash and Kamal @ Pinki involved in murder of one Zile Singh- separate trial is going on, as such, so no comments can be made whether they have been implicated falsely or rightly.

Accused Vijay Mohan had association with accused Deepak Dass, Kamal @ Pinki and Kamal @ Shailey, not proved.

Recovery of two gold bangles from accused Deepak Dass at the time of his arrest, belonging to Sujata Shah is not a proved circumstance.

Recovery of revolver Ext. P.50 from accused Vinay is not a proved circumstance.

Accused Ravi Prakash stayed at Sweet Dream Hotel, Baroda 16.6.96 is not approved circumstance.

Accused Ravi Prakash stayed under the assumed name of Shard Gupta at Hotel Surya, Baroda from 10.6.96 to 11.6.96 is approved circumstance.

Accused Vinay had associated with accused Ravi Prakash being accused persons in case FIR No. 949/96. Regarding this circumstance no comments can be given as the case is pending.

Accused Ravi Prakash under the assumed name of Sharad Gupta, Kamal @ Pinki and accused Subash Gupta stayed at Hotel Centaur Delhi on 5.5.96 in this circumstance stay of accused Ravi Prakash only proved .

Accused Ravi Prakash made calls at the residence of in laws of Kamal @ Shailey and at Bombay from Hotel Centaur, is not a proved circumstance.

Association between accused Vijay Mohan and Hemant Kalra and Vibhore @ lavi having arrested together from Gopi Nath Bazar is a proved circumstance.

Recovery of forged driving licence of accused Ravi Prakash in the name of Shard Gupta and having photograph of Ravi Prakash is a proved circumstance.

Recovery of car no. UP80A 3581 from computerised parking IGI Airport is a proved circumstance.

This car was bearing a fake number UP80A 3581 and was a stolen property is a proved circumstance.

Finger prints of accused Vibhore @ lavi was found in the car is not a proved circumstance.

Digital Diary of accused Ravi Prakash and accused Deepak Dass found in the car is not a proved circumstance.

Accused Vibhore @lavi got filled petrol in this car from Highway Service Centre is not a proved circumstance.

This car got repaired at the Unique Car Scanners is not a proved circumstance.

Accused Ravi Prakash purchased an Exide Battery for car No. UP80A3581 is not a proved circumstance.

Recovery of car of Kamal bearing no. DL3CE1565 in which he went to attend the meeting at MCD office along with Deepa Gupta and Sujata Shah, found lying abandoned at Hodel is a proved circumstance.

Car No. DL3CE1565 of Dr. Kaul used by accused Kamal @Shailey, Hemant Kalra and Ravi Prakash and they got filled in petrol in this car from Avadh filling station is not a proved circumstance.

BMW of car of accused Subash Gupta found in the parking of Hotel Leela, Bombay is a proved circumstance.

Blood stained mat, blood stained fibres of cloth in which body of Deepa Gupta wrapped found in BMW car of accused Subash Gupta is a proved circumstance.

Accused Subash Gupta stayed at Hotel Leela Bombay is a proved circumstance.

Accused Ravi Prakash stayed at Hotel Leela Bombay is a proved circumstance.

Accused Subash Gupta‟s finger prints found on glass which was found in Room No. 408 Hotel Leela, Bombay is a proved circumstance.

Bill of payment regarding stay of accused Subash Gupta made the payment from his credit card is a proved circumstance.

Accused Subash Gupta stayed at House No. 273 Shastri Nagar, the house of co-accused Vijay Mohan on 6.6.96 is not a proved circumstance.

Accused Ravi Prakash under the assumed named of Sharad Gupta stayed at Hotel Mayur on 5.6.96 is not a proved circumstance.

Stay of accused Ravi Prakash, Kamal @ Pinki and Subash Gupta at Hotel Centaur Bombay on 8.6.96 to 12.6.96. In this circumstance only stay of accused Ravi Prakash is proved in Centaur Hotel Bombay on 8.6.96 to 12.6.96.

Accused Ravi Prakash, Deepak Dass and Vijay Mohan stayed at Hotel Ajanta Ahmedabad on 12.6.96 from 3 am to 6.30 p.m. In this circumstance stay of accused Ravi Prakash is proved.

Accused Ravi Prakash, Deepak Dass and Vijay Mohan stayed at Hotel Teerath from 12.6.96 to 13.6.96. In this circumstance stay of accused Ravi Prakash is only proved.

Accused Vijay Mohan, Vibhore and Hemant Kalra stayed at Hotel Gautam Paradise on 6.6.96 is not a proved circumstance.

Accused Ravi Prakash under the assumed name of Sharad Gupta stayed at Hotel Surya Baroda in Room no. 206 on 10.6.96 is not a proved circumstance.

Recovery of Wrist Watch of Dr. Kaul from accused Vinay belonging to Dr. Kaul is not a proved circumstance.

Recovery of Gold Kangan of Deepa Gupta deceased from the house of accused Kamal @ Shailey at his instance in pursuance of disclosure statement is not proved.

Recovery of Gold Kangan from Kamal @ Pinki from his house at his instance in pursuance of disclosure statement is not proved.

Recovery of cellular phone No.981108640 and battery charger of accused Subash Gupta from accused Vijay Mohan at the time of his arrest is not proved.

Recovery of revolver Ext. P.50 from accused Kamal @ Shailey is not a proved circumstance.

Recovery of Gold Bangles Ext. P.12/1 and 2 from accused Deepak Dass at the time of his arrest which Kangans were worn by deceased Sujata Shah is not a proved circumstance.

Recovery of gold Bangles from accused Hemant Kalra is not proved.

Recovery of gold bangles from accused Vibhore @ Lavi is not proved.

Accused Subash Gupta absconding after 6.6.96 is a proved circumstance.

Accused Ravi Prakash absconding is also a proved circumstance.

Accused Kamal @ Pinki absconding is a proved circumstance.

Giving of call from Sheer Pur Pathak PCO booth at phone

Giving of phone call at No.6470485 installed at Dish Restaurant of which accused Subash Gupta is proprietor is a proved circumstance.

Giving of phone call at no. 540041 PCO booth at Sheer Pur Pathak the residence of in laws of Kamal @ Shailey is not proved.

Accused Ravi Prakash pointed out the PCO booth at Sheer Pur Pathak is not a proved circumstance.

Accused Ravi, Deepak Dass, Kamal @ Shailey and Kamal @ Pinki stayed at Hotel Teerath, Har Ki Pauri on 13.6.96 and made telephone calls at the residence of in laws Kamal @ Shailey, at contact No. of accused Vijay Mohan and at contact number of accused JK ( proclaimed offender) and at Rajinder Rattan Building. Making Phone calls are not proved while stay of accused Ravi Prakash at Hotel Teerath is proved.

Accused Ravi Prakash assumed the name of Sharad Gupta and hid his true identity is a proved circumstance.

Accused Vibhore @ Lavi led the police party to 35, Dayal Bagh, Adnan Bagh in pursuance of his disclosure statement is not proved.

Accused Subash Gupta in pursuance of disclosure statement led to House No. 213 Shastri Nagar, Meerut, 35 Dayal Bagh, Adnan Bagh is not a proved circumstance.

Accused Subash Gupta in pursuance of his disclosure statement led the police party to the place where dead body of Sujata Shah and Deepa Gupta found is not a proved circumstance.

Accused Kamal @ Shailey in pursuance of his disclosure statement let the police and pointed out the place where dead body of Doctor Kaul found is not a proved circumstance.

Accused Kamal @ Shailey in pursuance of his disclosure statement led the police and pointed out Avadh filing station, is not proved.

Accused Ravi Prakash in pursuance of his disclosure statement led the police party to Rajinder Rattan Building, Bombay is proved.

Accused Ravi Prakash in pursuance of his disclosure statement led the police and pointed out Sagar Chand Jewellers is a proved circumstance.

Accused Ravi Prakash in pursuance of his disclosure statement led the police party to the place where from dead body of Doctor Kaul was recovered and his car found, and places where dead body of Deepa Gupta and Shah were found. This circumstance is not proved.

Accused Ravi Prakash in pursuance of his disclosure statement led the police party to Padmawati Building, Bombay is not a proved circumstance.

Accused Ravi Prakash led the police party in pursuance of his disclosure statement to the house of accused Subash Gupta is not a proved circumstance.

Accused Ravi Prakash in pursuance of his disclosure statement led the police party to hotel Surya, Hotel Chetan and hotel Garodia is a proved circumstance.

Accused Hemant Kalra led the police party to Super Bazar LNJP Hospital is a proved circumstance.”

As far as A-1 was concerned, the following circumstances were held to be proved:

The trial Court held that the above circumstances formed a complete chain, consistent with the guilt of A-1. The trial Court disbelieved the defence put forth by A-1. It was inter alia observed that the two police officers from PS Sahar who deposed in his favour as DWs had colluded with him.

Mr. Mathur then focussed on each of the circumstances held to be proved by the trial Court and pointed out that the analysis of the evidence by the trial Court was flawed in relation to some of them. Certain crucial details were either left out or presumed by the trial Court. For instance, when the trial Court concluded that the accused had made a disclosure statement regarding his making a call outside Chetan Hotel, the trial Court in fact erred because that disclosure was not made by A-1 but by A-8. The pointing out was also by A-8 and not by A-1.

Mr. Mathur further submitted that the trial Court failed to examine whether the alternate theory put forth by the accused was plausible, particularly with reference to the BMW car being found at Hotel Leela Kempinski, Mumbai. There were some circumstances, according to Mr. Mathur, which were not discussed at all in the judgment. For instance, circumstances 17 and 65 to the effect that A-1 had absconded after the meeting at the MCD office at Okhla on 6th June 1996 was not discussed in

Mr. Mathur pointed out that the 17 defence witnesses examined included certain crucial witnesses who ought to have been examined by the prosecution. These included Dr. S.K. Gupta (DW-13) who had medically examined A-1 at AIIMS on 11th June 1996 soon after he was brought to Delhi and two police officers of PS Sahar in Mumbai, DW-15 and DW-16. Even Nitin Gupta, the son of A-1, who had given the complaint in the first instance on the basis of which the case-FIR was registered was, for some reason, not examined as a prosecution witness. He had to be examined as DW-1. Further, the brother of A-1, Anil Gupta, who is supposed to have informed the police about the presence of A-1 at Hotel Leela in Mumbai was named as PW but finally dropped by the prosecution. There was no satisfactory explanation for this. If the evidence of DWs was carefully analysed, then the defence was probablised. There was no reason why the defence evidence should be discarded.

A careful perusal of the charge sheet as well as the supplementary charge sheet shows that the case put forth by the prosecution is only that all the accused met to plan to eliminate SK. There was no plan, even according to the prosecution, to eliminate SS or DG. In order to prove this charge, the prosecution had to first prove that A-1 was madly in love with SS and wanted to get her at any cost. He was prepared to eliminate SK who was seen by him as coming in the way. The Court finds that in outlining the circumstances in this regard, the trial Court has not followed any particular chronological sequence. The circumstances as outlined by the trial Court in this regard, read as under: “1. Accused Subash Gupta a member of PPL and Sujata Saha was her counseller.

Subash Gupta infatuated with Sujata Saha.

Subash Gupta purchased a diamond ring for Sujata Saha to be presented on her birthday on 6.6.96.

Subash Gupta purchased air tickets for Sujata Saha and her family.

Subash Gupta engaged a private detective to have surveillance on her and ascertain her relations, if any, with Doctor Kaul.

Followed Sujata Saha at Balaji.

Got followed Sujata Saha at Shirdi by accused Ravi Prakash

Subash Gupta used to make calls to Sujata Saha from his cell phone at her office as well as at her residence.

Wrote letters to Sujata Saha expressing her love.

Accused Subash Gupta threatened to kill Sujata Saha if he does not get her, which threat was conveyed through writings made in a diary presented by him to Sujata Saha.

The accused persons met at Hotel Mohan to carry out conspiracy of kidnapping and murdering Sujata Saha, Deepa Gupta and Doctor Kaul.”

Apart from the fact that the above circumstances do not follow any chronological sequence, it can immediately be seen that the circumstance of purchasing the diamond ring for SS to be presented to her on 6th June 1996 is actually subsequent to the purchase of the air tickets and following SS to Tirupati Balaji. The circumstance of keeping her under surveillance by engaging PW-8 is subsequent to following her at Shirdi. The circumstance of making calls and writing letters to SS did not follow any particular sequence. There are no particular dates.

While circumstance No.1, that A-1 was a member of PPL and SS was his Counsellor definitely stands proved, inasmuch as it is not even denied by A-1, what is not proved is that he in fact threatened to kill her. This threat is supposed to be found written in diary (Ex.PW-10/A) which is produced by Sukumar Saha (PW-10) on 18th June 1996 while searching for documents of his daughter in the almirah of his elder daughter Swarna Saha. The other witness who deposed about the recovery of this diary was Rakesh Manocha (PW-143), the brother-in-law of SS. Further, as pointed out by the trial Court, this circumstance was only partly proved. Two hand-writing experts were examined, one by the prosecution (PW-108) and the other by the defence (DW-2).

As noted by the trial Court, the questioned writings to the effect “If you do not become mine, I will murder you and same time I will make to suicide myself” are Q-31 and Q-29. In the report of PW-108 (Ex.Q-108/F-1) it was opined to be in the handwriting of A-1. In this regard, specific finding of the trial Court is as under: “So far as Q. 31 is concerned where it written that if you not becomes mine I murdered you and same time I meet to suicide myself is concerned: in my opinion the same cannot be read in isolation from the contents of the rest of the diary and should not be extracted and read separately so as to constitute a threat. As in the entire diary and in the question writing the accused Subash Gupta has not used any harsh words against Sujata Shah and has only expressed his fondness and obsession and intention to have intimacy with her. Even in Q.31 besides stating that he will murder her he has also written that he will also commit suicide which at best can be expression of frustration because of love. Literal meaning to such words cannot be extended as it is only by way of expression of one‟s feelings. More important in this regard is the fact that this diary as per the prosecution was found in the almirah of Sujata Shah and naturally it is she who must have placed it there and to whom the diary it can be said, was handed over by Subash Gupta himself or through some other person. But the very fact that Sujata Shah kept that diary in an almirah and herself had not taken the wordings in Q. 31 in its literal sense as P.W.10. The father of Sujata Shah had admitted that Sujata Shah never complained with regard to any threat on behalf of accused Subash Gupta, and had rather taken it at best to be an overreaching by a customer with the concern where she was employed.”

The above analysis appears to be plausible and reasonable. In fact, when these writings are seen in the proper context, it is not as if A-1 wanted to eliminate SS. It rather depicted his infatuation with her. Even otherwise, it

As far as the motive for eliminating DG is concerned, there is not a shred of evidence anywhere in the entire record, whereby the prosecution has been able to prove that such a motive did exist. The trial Court also failed to find any motive whatsoever for the killing of DG much less any conspiracy between the accused persons to that effect.

None of the 11 circumstances regarding the motive of A-1 to eliminate SS was proved. As pointed out by the trial Court. the prosecution was only able to show that A-1 was infatuated with SS but that this was short of lust as admitted by himself in his statement under Section 313 Cr PC.

With this background, if one revisits the first charge, viz., the conspiracy at Hotel Mohan, one of the witnesses to prove this was the Manager of the hotel, PW-121, Anil Saluja. A careful perusal of his evidence reveals that a person in the name of Sharad Gupta had stayed on 5th June 1996 giving his address as 186 Civil Lines, North Muzaffarnagar U.P. He was only able to prove the bills dated 26th April, 27th April, 3rd May 1996 relating to Room No.110 which was booked in the name of Sharad Gupta. He said nothing about the stay of any of the accused persons at the hotel at any point in time.

The second witness from Hotel Mohan was Ganga Sagar Shukla (PW- 122). He did not recognise any of the accused as being present at the hotel. He was working there as a waiter. In other words, he turned hostile and failed to support the prosecution. The third witness was Sandeep Rana (PW- 123) who worked as a Cashier at the same hotel. All he could say is that the police took into possession the Booking Register. He too did not support the prosecution in any other manner. As a result, none of the three witnesses examined by the prosecution to prove the first charge supported the case of the prosecution.

The learned APPs for the State were unable to show what was the substantial evidence led by the prosecution, and ignored by the trial Court, as far as the first charge is concerned. The above evidence clearly was wholly inadequate to prove the first charge.

If the said charge, viz., the charge of conspiracy to kill the three accused, punishable under Section 120-B IPC, fails then the entire edifice of the prosecution case gets severely shaken. This was a case involving the murder of three adults, one male and two females. If the accused, 10 in number, had not come together to plot their killing as was alleged by the prosecution, then the motive for the crime itself disappeared. This is a glaring aspect which cannot be overlooked.

Even before this Court, the prosecution has not been able to improve upon what was placed before the trial Court. It has not been able to show that the analysis of the evidence of the trial Court and its conclusion that the charge of conspiracy is not proved suffers from perversity. The Court is,

With there being no proof of the motive for the crime, the Court is unable to appreciate how when it came to discussing the role of A-1, the trial Court could simply conclude that there was motive for A-1 to eliminate SS. In this regard it must be pointed out, at the cost of repetition, that the prosecution story was not that A-1 had motive to kill SS but that he had a motive to kill SK. There is nothing in the charge sheets which even remotely points to any conspiracy to kill either SS or DG. Therefore, the starting point for the trial Court to convict A-1, viz., that he had a motive to kill the three deceased is itself flawed.

As regards the motive to kill SK, the trial Court itself found that the prosecution story that A-1 suspected that SK was having an affair with SS and engaged PW-8 to undertake a surveillance of her activities was held by the trial Court not to be proved. The learned APP for the State relied on the evidence of Kamal Singh (PW-8) in this regard.

This Court has, with the assistance of learned counsel of the parties, perused the evidence of PW-8. He is unable to explain how no form was filled by A-1 for engaging his services. This despite stating that “normally all columns, when a form is filled for engaging us, are filled up”. There is not even a signature of A-1 on the form. PW-8 was unable to produce any income tax returns filed by him. The Form Ex.PW-8/A which was produced by him to show that he was engaged by A-1 was filled in his own hand. It is further strange that PW-8 states that he handed over the reports to A-1 and

Further, although PW-8 states that he charged Rs.4,000/- per day and was engaged for 15 days, he was able to prepare a report only after receiving Rs.30,000/- from A-1. PW-8 was also unable to produce copies of any receipt that he may have issued for the payments made to him by A-1. His understanding of who could be said to be of a good character also raises serious doubts on whether in fact PW-8 carried out any investigation.

On an analysis of the evidence of PW-8, the Court is inclined to concur with the trial Court that this is not at all a trustworthy or reliable witness. He has been rightly disbelieved by the trial Court. The net effect is that the circumstance put forth by the prosecution that A-1 was upset or suspected that SK was having an affair with SS and was coming in the way, has not been proved at all by the prosecution. The important element of a motive for A-1 to eliminate SK has not been proved by the prosecution.

It must be recalled that according to A-1, he was lured into investing more money into PPL by SS. His incentive was that he was going to be paid

As regards the meeting at the MCD office, the evidence of Seema Shah (PW-28) an employee of PPL proves that DG had informed her that she, along with SK and SS, had to meet A-1 at 7 pm. Likewise, Sukumar Saha (PW-10) also proves that SK and DG had come to his house to pick up SS between 6.30 and 7 pm on 6th February, 1996. This is concurred with by PW-11, Rajesh Gupta and PW-83, Shobha Kaul. All of this is consistent with the statement of A-1 in Section 313 of Cr PC that he did call for a meeting at the MCD Office to discuss the agreement regarding opening of a new branch of PPL at Vikas Marg. Therefore, this hardly advances the case of the prosecution as far as the conspiracy to stage a kidnapping is concerned. There is no shred of evidence to prove that.

The presence of SK at MCD Office is also strengthened by the fact that his driving license (DL) was found there. This is spoken to by ASI CB Upadhyay (PW-6). It must, however, be noted that the prosecution case is that DW-1 handed over to the police the DL of SK. However, this is denied by DW-1. Be that as it may, the fact remains that there is nothing to show that all the accused were present at the MCD Office at the time when so- called staged kidnapping happened. The version of A-1, on the other hand, is

The medical examination of A-1 at the AIIMS on 11th June 1996 after his arrest, was done by DW-13 who has clearly spoken about noticing two injection pricks on both his arms. It also showed the presence of diazepam in his blood. The injuries on his front chest and the rear of his chest are also consistent with the fact that he himself would have been under sedation and not aware of what was happening till he became conscious and found himself at Hotel Leela. The Court is, therefore, not able to agree with the trial Court when it states that A-1 is last seen in the company of the three deceased to make it appear that there was no one else at that time. The case of the prosecution is not that it is A-1 alone who was with the three deceased at the MCD Office. The case of the prosecution is that all of the ten accused were there pursuant to the conspiracy hatched by them on 5th June 1996 at Hotel Mohan in Ashok Vihar. Therefore, it is futile for the prosecution now to try and demonstrate that A-1 could have done the entire crime on his own to the exclusion of all the accused.

To be fair to the State, it is in appeal before this Court only because it sees the futility of the above result brought about by the judgment of the trial Court. It is either that all the accused did get together to commit the murder of the three deceased or that none of them did. It does not stand to logic that A-1 could somehow have, on his own, got the three deceased abducted,

Where there are multiple murders involved and a complex set of facts where abduction happened at one place and the murders in different locations and the bodies being thrown in different locations, it is impossible for one person to single-handedly do all of those acts. Therefore, even for this reason, the judgment of the trial Court insofar as it convicts A-1 for the aforementioned offences does not stand to reason at all.

The third circumstance that has been held by the trial Court to be proved against A-1 is about his being absconding and being traced ultimately at Hotel Leela Kempinski in Mumbai. In this regard the conclusion drawn by the trial Court that the two policemen at PS Sahar, i.e., DW-15 and DW-16 were colluding with A-1 is, to say the least, completely without any basis. The evidence of both those witnesses shows that there was no need for them to be supporting A-1 against the Delhi Police. They appeared to be speaking from the report. Indeed, they had recorded the statement of A-1 which was marked in evidence. Whether recording of such a statement was necessary is solely beside the point. The fact of the matter was that such a statement was in fact recorded.

In that statement, A-1 explains that he was unconscious and unaware of what transpired between 6th and 10th June 1996 when he was being examined by them. This is completely consistent with the version of A-1 and could not have been simply brushed aside by the trial Court. Even the

The Court repeatedly enquired of the learned APP for the State whether there existed a possibility that someone else, other than A-1, could have driven the BMW car from the MCD office to Hotel Leela in Bombay. The Court has not been given a satisfactory answer in this regard.

As regards the recovery of blood stained mat from the car and fibres which purportedly were similar to the bed sheet in which the dead body of DG was wrapped, the fact to be noticed is that the car remained in the custody of the police between 10th June 1996 (when it was found) and 13th June 1996 (when it was brought back to Delhi) and examined by the CFSL at Delhi. That the BMW car has been in the custody of the police and that the recoveries of these articles, namely, blood stained mats and fibres being made not in the presence of A-1 or any independent witnesses, such recoveries lose all significance.

This could not be said to be recoveries pursuant to any statement made or disclosure made by A-1 under Section 27 of the Act. It was made at the

Consequently, merely because the above blood stained mat and fibres were recovered from the car belonging to A-1, it cannot be said that A-1 was the one who drove the car with those articles in the car and with the knowledge of the incriminating nature of those articles. There is a huge gap in the prosecution story in this regard which is not sought to be filled up with any cogent evidence.

As regards the chance prints on the glass in Room No.408 of Hotel Leela, the mere fact that it matched the specimen prints of A-1, did not go to show that he was linked with the crime of the murders of the three deceased. All it showed was that he was in the room No. 408. He does not explain the circumstances under which he was in that room.

Learned APP for the State pointed out that huge bills in the sum of Rs. 14,000 were run up by A-1 during his stay in Hotel Leela and he himself paid these bills using his credit card. In this regard, it seems that A-1 was

PW-145 was a guard of Leela Hotel. He is supposed to have identified A-1, whereas another employee, PW-129 could not. Be that as it may, the mere fact that he was seen by one of them in the hotel room will again not satisfactorily explain the circumstances under which he was found in that room. This did not prove that A-1 somehow absconded after he was last seen at the MCD Office and emerged at Leela Hotel on his own by driving the BMW car himself from the MCD Office to Leela Hotel.

In this context, it must be noticed that in the charge sheet the prosecution states that it was A-2, Pinky and A-3, Chaudhary who in fact drove the BMW car having A-1, SS and DG from there to Meerut, in the first instance. It is not the case of the prosecution that A-1 somehow alone drove the BMW car from the MCD Office together with the dead bodies of SS and DG.

The further circumstance that is said to have been proved against A-1 is his making the call using the phone at the STD booth in front of Hotel

PW-64 Vijay Singh of MTNL only proved that the said telephone number 6470435 was installed at Dish Restaurant in Greater Kailash-II whose proprietor was Subash Gupta. What was overlooked is the evidence of the IO, PW-141 and ASI Shiv Singh (PW-103) who stated that it was A-8, Ravi Prakash who led the police to the STD booth pursuant to his disclosure statement. Therefore, it was not the disclosure statement of A-1 that led the police to the STD booth as wrongly noticed by the trial Court. Therefore, this pointing out by A-8 could not be read as evidence against A-1 by any stretch of imagination. There was nothing in fact to show that it is A-1 who made the call from the STD booth.

Consequently, none of the circumstances which the trial Court has held as proved against A-1, in fact, stand proved against him. The Court is, therefore, unable to concur with the conclusion of the trial Court as regards the guilt of A-1 for the offence with which he was charged. He is entitled to the benefit of doubt.

As regards each of the other accused, there has been a very detailed discussion in the trial Court judgment of the circumstance qua each of them.

It is sought to be contended that the Maruti 800 car which was found outside IGI Airport contained digital diaries with the numbers of A-1 and A-5. The said digital diaries do not appear to have been proved in accordance with law and, therefore, has rightly not been relied upon by the trial Court. The mere fact that one Gold Bangle having daanedar design (Ex.P-27) was found in possession of A-3 is again insufficient to link him to the crime. Interestingly, there was no TIP for identifying the said bangle as belonging to either SS or DG. The mere fact that A-3 was arrested from Delhi Cantonment is again an insufficient circumstance. It has come in the evidence of ASI Saheb Singh (PW-21) that from noon on 22nd June 2006 to 23rd June 2006, Vibhore Singh, Hemant Kalra and Vijay Mohan were in the police lock up. Since they were already in the lock up, the question of A-3 being arrested on 22nd June 2006 from Gopinath Bazar at 5 pm was not proved.

As regards Hemant Kalra (A-5) his purchase of ampoules from the Super Bazar of LNJP, whose in-charge was Subash Oberoi (PW-16), was not proved. PW-16 could not recognize Hemant Kalra as the person who had purchased the ampoules. No name of the purchaser on the bill (Ex.PW-16/C) was mentioned. There was a name of Hemant Kalra on the other bill

As regards Vijay Mohan (A-4), he is shown to have been in custody at Meerut from 20th March 1996 to 11th June 1996. He is mistaken for A-6 (Vinay). There is a wrong mention of the name of Vijay Mohan instead of Vinay Kumar who is stated to have been arrested from Baroda on 19th June 1996. The evidence in regard to these two accused were, therefore, rightly disbelieved by the trial Court.

There is no sufficient evidence linking any of these accused to the crime and in particular even to the recovery of the stolen articles. None of the recoveries were in the presence of any independent witness and when viewed in the overall context, these recoveries cannot be believed. This Court has examined the evidence in respect of each of the other accused, that is, Deepak Das and Kamal @ Shailey and Vinay Kumar and concurs that the conclusion reached by the trial Court that the evidence against each of them is wholly insufficient to bring home their guilt.

The murder of three persons in the „Personal Point‟ case attracted considerable media attention when it happened in 1996. The details of the investigation, to which the media was privy, shaped public perception about the guilt of those put on trial. Two decades later, when that perception is not borne out, it invites a reflection on the criminal justice process. Courts must test the evidence gathered during investigation in the calm interiors of court halls, uninfluenced by the discussions in the media. Objective criteria, evolved over the years and fine tuned by judicial precedents, are applied by the Court to evaluate the credibility of the prosecution‟s case and the defence of the accused. Not infrequently, the Court disagrees with the prosecution about the guilt of those put on trial. This is because, as the Supreme Court pointed out long ago in Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC 159, if a murder is “a particularly cruel and revolting one”, then “for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an

Also, as cautioned in Akhilesh Hajam v. State of Bihar 1995 Supp (3) SCC 357, “though it appears to us that in all probability the appellant may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travelled between the expression “may be” and “must be”. However strong emotional considerations may be, but the same cannot take the place of proof.”

Unless the evidence presented before the Court passes legal muster, it will not be possible for the Court to agree with the conclusions reached in the charge sheets presented by the prosecution before it. The process of trial tests whether the distance from „may have committed the crime‟ to „has beyond reasonable doubt committed the crime‟ has been covered. In this case, the prosecution has failed to complete that journey. Suspicion, however strong, cannot and should not substitute proof. A dispassionate adjudication should be impervious to public perceptions of who might or might not be guilty. The present case points to a failure of investigation which has the inevitable result of acquittal of those put on trial.

The bail bonds and surety bonds of A-1 stand discharged. A-1 will fulfil the requirements of Section 437-A Cr PC to the satisfaction of the trial Court not later than two weeks from today.

As far as the State‟s appeal is concerned, the Court finds no reason to disagree with the reasoning and conclusion of the trial Court holding that A- 3 to A-7 and A-9 were not guilty of the offences with which they were charged and, therefore, deserved to be acquitted. It also concurs with the impugned judgment of the trial Court acquitting all the accused of the offence of conspiracy under Section 120-B IPC and A-1 under Section 216 read with Section 34 IPC.

Crl. A. No. 247/2000 of A-1 is allowed and Crl.A.No.81/2003 of the State is dismissed in the above terms. However, there will be no order as to costs.

The trial Court record be returned forthwith together with a certified copy of this judgment.