Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 1 of 58 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 29.04.2009 Judgment delivered on: 08.05.2009 DEATH SENTENCE REF. NO.1/2008 STATE …Appellant Through : Mr.Pawan Sharma, Advocate. versus RAJ KUMAR KHANDELWAL …Respondent Through : Mr.Rajesh Mahajan, Advocate. CRL. APPEAL NO.294/2008 RAJ KUMAR KHANDELWAL …Appellant Through : Mr.Rajesh Mahajan, Advocate. versus STATE …Respondent Through : Mr.Pawan Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 2 of 58 1. Vide judgment and order dated 14.2.2008, Raj Kumar Khandelwal, hereinafter referred to as the accused, has been convicted for the offence of murdering his wife Anita and his three minor daughters; Kumari Alisha aged about ten years, Kumari Chamma aged about eight years and Kumari Jyoti aged about four years. Vide order of sentence dated 16.2.2008, the learned Trial Judge has imposed the sentence of death upon the accused and has accordingly made a reference to this Court for confirmation of the sentence. 2. Section 366 of the Code of Criminal Procedure 1973 requires confirmation by the High Court before execution of a sentence of death passed by the Court of Session. In the reference proceeding under Section 367, the High Court, if it thinks fit, is empowered to make further inquiry and receive additional evidence upon any point bearing upon the guilt or innocence of the convicted person. Under Section 368, the High Court may confirm the sentence, annul it or pass any other sentence, or convict the accused of any offence of which the Court of Session might have convicted him or may order a new trial on the same or an amended charge. The scope of these three Sections has been interpreted by the Supreme Court as casting a duty on the High Court to satisfy itself, by a reappraisal of the judgment of the Court of Session, about the guilt or innocence of the accused person. Reference be made Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 3 of 58 to the decision reported as AIR 1957 SC 469 Jumman & Ors. vs. State of Punjab wherein it was observed :- “12. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above-mentioned it is for the High Court to come to an independent conclusion of its own.” 3. Accordingly, with the able assistance of learned counsel for the State and the accused, we perused the entire evidence against the accused while hearing the reference and the connected appeal, needless to state, in which appeal, the accused has challenged the impugned decision convicting him. 4. Certain admitted facts may be noted at the outset so that the evidence relatable thereto is noted very briefly and the burden of a lengthy decision is avoided. 5. It is not in dispute that the wife and the minor daughters of the accused were found dead in room No.6, Gautam Hotel, Church Mission Road, Fatehpuri and that the viscera of the wife of the accused as also his daughters Kumari Alisha and Kumari Chamma, tested positive for the presence of aluminium phosphide and the viscera of the two Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 4 of 58 daughters additionally tested positive for the presence of dihydroergotamine. The viscera of Kumari Jyoti tested positive for the presence of dihydroergotamine. The same is evidenced from the FSL report Ex.PW-38/M. 6. It is also not in dispute that a white coloured top with light red coloured stripes as also a navy blue coloured flowered designed skirt worn by Kumari Jyoti, which were removed from her dead body at the mortuary, also tested positive for the presence of aluminium, a fact recorded in the FSL report Ex.PW-38/M. Similarly, the gown and the bra recovered from the dead body of the wife of the accused tested positive for the presence of aluminium phosphide. It is also not in dispute that vide same report, aluminium phosphide was detected on two bed-sheets recovered from the beds inside the room where the four dead bodies were found. Similarly, a gamcha and a handkerchief found inside a polythene bag which was recovered from the ledge of the window of room No.6, Gautam Hotel on 18.7.2005 also tested positive for the presence of aluminium phosphide. 7. It is also not in dispute that the cause of the death of the wife of the accused and the three daughters, as per post-mortem reports Ex.PW-6/A, Ex.PW-4/A, Ex.PW-4/B and Ex.PW-4/C pertaining to Anita, Jyoti, Alisha and Chamma respectively, opined as under:- Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 5 of 58 A. Anita : Death due to asphyxia and cardiac anoxia as a result of phosphide poisoning. B. Jyoti : Cause of death is asphyxia as a result of manual strangulation. C. Alisha : Cause of death is asphyxia as a result of manual strangulation. D. Chamma : Cause of death is asphyxia as a result of manual strangulation. It is also an admitted fact that contusion and crescentric abrasions were noted on the neck of the three daughters, at the middle of the neck, and the said injuries establish that the three daughters were throttled by sufficient force resulting in their death occasioned by asphyxia i.e. to put in simple words, the three daughters were manually strangulated. 8. It may also be noted at the outset, that at the trial, the accused simply projected a defence of innocence, save and except a suggestion to PW-5 during cross-examination, that it was a case of suicide by the wife, who had poisoned her children. The said line of defence can be found with reference to the answers given by PW-5 at the tail end of his cross- examination, where the witness has deposed as under:- “It is correct that deceased Anita was suffering from some disease like diarrhea. Voltd. She was suffering Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 6 of 58 with this disease after one day of their arrival in my hotel. She was looking depressed because of her illness. It is incorrect to suggest that the lady and the kids have committed suicide in the room. I cannot say, whether deceased Anita was looking depressed because of her financial loss. I had not seen the accused administering the pills or any other substance to his wife or children when they were in the room. It is incorrect to suggest that I am deposing falsely at the behest of police officials and that the accused have been falsely implicated in this case.” 9. Since emphasis was laid during arguments in appeal that the evidence on record does not rule out the possibility of Anita murdering her children and committing suicide herself, we shall be specifically focusing on the conduct of the accused, for the reason, whenever a housewife is found dead as a result of poison and the husband was in the house and there is no suicide note found, the conduct and the mental condition of the wife as also the conduct and the mental condition of the husband are relevant; probably the only source wherefrom an inference can be drawn by the Court, whether it is a case of suicide or of murder. 10. The accused admitted being married to Anita and being the father of Alisha, Chamma and Jyoti. In response to question No.1, when examined under Section 313 Cr.P.C. he also admitted that he was residing as a tenant in Mohalla Lakhibagh Mannpur, Pulpaar, Gaya, Bihar and was running a small scale manufacturing unit under the name and style Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 7 of 58 M/s.Jyoti Industries. In response to question No.6, the accused admitted that he and his family, comprising his wife and three daughters, had checked in at 7:45 PM on 25.6.2005 at Gautam Hotel and were staying in room No.6 till 5.7.2005. 11. Pertaining to the events which took place at Gautam Hotel on 5.7.2005, the hotel staff noted that the accused left the hotel at around 9:30 AM on 5.7.2005 and till early evening there was no movement of his wife and the children. Amrit Lal PW-9, an employee of the hotel was filling water in the tank of the water coolers installed in the various rooms of the hotel and proceeded to fill the tank of the water- cooler in room No.6 and received no response when he knocked at the door. He applied a gentle pressure on the door, which not being locked from within, opened. To his horror, Amrit Lal saw four dead bodies on the bed. His instinct, naturally so, was to rush to the owner of the hotel. Deepak Mehta PW-5 son of Prithvi Raj Mehta PW-7 was present at the reception of the hotel, which belonged to his father Prithvi Raj Mehta. He i.e. Deepak Mehta immediately ran to the police post nearby i.e. Police Post Church Mission Road under jurisdiction of PS Lahori Gate, where Const. Sanjay was on duty, who recorded DD No.31, Ex.PW-26/A, noting therein the statement of Deepak Mehta to the effect that the accused, his wife and three daughters had checked in Hotel Gautam at 7:45 Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 8 of 58 PM on 25.6.2005 and that at 9:30 AM the accused had left the hotel informing him i.e. Deepak Mehta, that he was going to collect money from an acquaintance to clear the hotel bill and that at 6:15 PM, Amrit Lal, a waiter in the hotel, had gone to room No.6, where the accused and his family were staying, and saw the wife and the three daughters of the accused lying dead on the bed. 12. SI Brij Mohan PW-27 was in charge of the police post at Church Mission Road. A copy of DD No.31 was transmitted to him through Const. Sant Raj PW-26, and accordingly SI Brij Mohan and Const. Sant Raj accompanied by Deepak Mehta reached the hotel. 13. Inspector Raja Ram Yadav PW-37, then posted as SHO PS Lahori Gate, received telephonic information at 6:35 PM of four dead bodies being found in a room in Gautam Hotel. He immediately reached the hotel and joined SI Brij Mohan and Const. Sant Raj. 14. An FIR had to be got registered to proceed with the investigation. SI Brij Mohan penned a statement of facts (rukka) Ex.PW-27/B, recording therein the recovery of four dead bodies; that of a lady named Anita and her three daughters. It was noted that froth and blood had oozed out from the mouth and nose of the deceased. Two glass and a steel tumbler were seen on the table as also a small plastic Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 9 of 58 cup; which facts were noted in the statement. It was recorded that the conduct of the accused was suspect and that an FIR be registered under Section 302 IPC. Const. Sant Raj took the rukka to the police station, where the FIR Ex.PW-31/B was registered at around 8:00 PM. 15. At the spot, Inspector Raja Ram Yadav PW-37, prepared the rough site plan Ex.PW-37/A, indicating therein the spots within the room where the four dead bodies were found lying. A photographer, Const. Sunder Lal PW-12, was summoned, who took ten photographs of the spots viz. Ex.PW- 12/1 to Ex.PW12/10; negatives whereof are Ex.PW-12/11 (collectively). The mobile crime team was summoned. SI Ajay Kumar PW-13, the head of the mobile team lifted chance prints from various objects and articles in the room; from which chance prints, Const. Rajbir successfully developed six chance prints from the two glass tumblers, the steel tumbler and the inner cup of the Mayur water jug in the room. Later on, after the accused was arrested and his specimen finger prints were obtained and sent to the FSL laboratory, vide report Ex.PW-20/A, it was opined that the chance finger prints Q-2 lifted from the steel tumbler and the change finger prints Q-4 and Q-5 lifted from the inner cup of the Mayur water jug matched those of the accused. Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 10 of 58 16. Two bed-sheets having vomit stains thereon were seized from the room by the police personnel present, vide seizure memo Ex.PW-5/C drawn up by Inspector Raja Ram Yadav. The glass tumblers, the steel tumbler and the inner cap of the Mayur jug were also seized vide seizure memo Ex.PW-5/D drawn up by Inspector Raja Ram Yadav. Various other articles were seized vide various other seizure memos, all of which need not be noted save and except the fact that vide seizure memo Ex.PW-5/A various personal belongings of the family were seized, which included a black coloured rexine bag of make „REEBOK S.A.H.Q.‟ in which clothes were kept and as noted at serial No.3 of the recovery memo, a dupatta was amongst the clothes. Additionally, it may be noted that as recorded in another seizure memo Ex.PW-5/E prepared by Inspector Raja Ram Yadav an exercise book Ex.P-14 bearing the name of Alisha Kumari was also seized from the room. 17. The bodies of the three young girls were sent to Subzi Mandi mortuary where Dr.Aakash Jhanji PW-4 conducted the post-mortem and submitted his reports Ex.PW-4/A, Ex.PW- 4/B and Ex.PW-4/C pertaining to Jyoti, Alisha and Chamma as noted in para 7 above. The body of Anita was sent to the mortuary of Aruna Asaf Ali Hospital where Dr.K.Goyal PW-6 conducted the post-mortem and submitted his report Ex.PW- 6/A as noted in para 7 above. Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 11 of 58 18. Messages were flashed all over Delhi to keep a look out for the accused. At 10:40 PM on 7.7.2005, the accused was spotted by HC Davinder Kumar PW-23 and Const. Karamvir PW-24 at platform No.7, Railway Station Hazrat Nizamuddin, New Delhi. As recorded in the kalandra under Section 41 Cr.P.C., on being questioned about his identity by HC Davinder Kumar, the accused kept on disclosing different names and different addresses pertaining to himself. He ultimately broke down and confessed that his name was Raj Kumar Khandelwal. The accused was kept in the police lock- up overnight and produced in the court of the area Metropolitan Magistrate viz. Shri Harish Dudani, M.M., Delhi having jurisdiction over PS Hazrat Nizamuddin. Simultaneously, the kalandra Ex.PW-23/A under Section 41 Cr.P.C. was filed in the Court of Shri Harish Dudani on 8.7.2005. It stands recorded in the kalandra that the accused was produced in the Court with his face muffled. Since it was disclosed in the kalandra that the accused had admitted to have murdered his wife and children, and even otherwise since the accused was a suspect, he was remanded to judicial custody. The accused was formally arrested on 16.7.2005 when the application Ex.PW-38/A moved in the Court of the learned Metropolitan Magistrate having jurisdiction over PS Lahori Gate, demanding police custody was allowed, and the Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 12 of 58 accused was handed over in police custody for a period of two days. 19. The investigating officer had changed by said date. Inspector Rai Singh Khatri PW-38, posted as the Addl. SHO of PS Lahori Gate took over custody of the accused and interrogated him. He recorded the statement Ex.PW-28/A made by the accused, which we note is by and large a confessional statement; confessional parts being inadmissible in evidence, we eschew reference to the same. Relevant and material for adjudicating the fate of the accused, it may be noted, that the accused disclosed to Inspector Rai Singh Khatri that he purchased sulphas tablets from Rajesh Mehta PW-14 who has a shop at the by-pass road, Gugri Taand, Gaya City, Bihar. The accused also disclosed that his youngest daughter Jyoti vomited the sulphas tablet which he had administered to her and that he had cleaned the vomit with a handkerchief Ex.P-19 and a gamcha Ex.P-18 which he had put inside a yellow coloured polythene bag and had thrown the same outside the room from the window towards Church Mission Road. He stated that he suspected that his youngest daughter would not die as she had thrown up the sulphas tablet and therefore he used a dupatta Ex.P-22 belonging to his wife to strangulate Jyoti. The accused also disclosed that he had sold Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 13 of 58 a gold finger ring of his wife to a jeweler at Dariba Kalan, Chandni Chowk, Delhi on 26.6.2005. 20. At the police station, from the black coloured rexine bag of make „REEBOK S.A.H.Q.‟ which was seized by the police on 5.7.2005 from the room where the dead bodies were recovered, (as recorded in the seizure memo Ex.PW-5/A), the accused pointed out the dupatta Ex.P-22 in the bag, which was seized separately, vide seizure memo Ex.PW-27/C. On 18.7.2005, the accused led Inspector Inder Singh Khatri PW-38 to the place of occurrence and pointed out the ledge of room No.6 of Hotel Gautam from where a polythene bag containing a gamcha Ex.P-18 and a handkerchief Ex.P-19 were recovered which were seized vide memo Ex.PW-7/A. Thereafter, he led Inspector Inder Singh Khatri to Dariba Kalan Chandni Chowk and pointed out a shop (No.1654) which happened to be the shop of Rajesh Babbar PW-6 as recorded in the pointing out memo Ex.PW-11/A. This was the shop, where as per the disclosure statement made by the accused, he had sold the gold ring of his wife on 26.6.2005 to Rajesh Babbar. The ring could not be recovered but Inspector Raj Singh Khatri recorded the statement of Rajesh Babbar that indeed, on 26.6.2005, the accused along with one Shiv Kumar, who was known to him i.e. Rajesh Babbar, had come to his shop and sold a ladies gold ring weighing two grams and had received Rs.900/- as sale Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 14 of 58 price thereof. The accused was taken to Gaya on 19.7.2005 and pointed out the shop of Rajesh Kumar Mehta PW-14 at By- pass Road, Dogri Taand, Gaya City, Bihar from which shop, he informed having purchased sulphas tablets. Inspector Rai Singh Khatri recorded the statement of Rajesh Kumar Mehta affirming that in May 2005 the accused had purchased seven tablets of sulphas from him. Inspector Rai Singh Khatri purchased ten tablets of sulphas from Rajesh Kumar Mehta vide receipt Ex.PW-14/C. The tablets were sealed by him as recorded in the possession memo Ex.PW-14/B. Photocopy of the licence Ex.PW-14/A authorizing Rajesh Kumar Mehta to sell sulphas was also taken by him. The accused thereafter led Inspector Rai Singh Khatri to his factory-cum-residence from where a ledge book Ex.P-22 was seized vide seizure memo Ex.PW-15/A. The accused and Inspector Rai Singh Khatri proceeded to Canara Bank, G.B.Road, Gaya and the Manager of the Branch Shri Vidhu Bhushan Thakur handed over a statement of account Ex.PW-18/A in the name of Jyoti Industries. He i.e. Shri Vidhu Bhushan Thakur also handed over two letters on the letter head of the firm of the accused, addressed to the bank manager, in the handwriting and under the signatures of the accused viz. the letters Ex.PW-18/D and Ex.PW-18/E, both of which were seized vide seizure memo Ex.PW-18/C. The investigation officer seized two registers Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 15 of 58 Ex.P-16 and Ex.P-21, the former being the statutory register maintained by Gautam Hotel and the second maintained by Vaishno Hotel containing entries of the guests who had checked in the hotel. Needless to state the said registers contained entries stated to be in the handwriting of the accused when he filled up the relevant columns of the registers, as and when he and his family checked into said hotels. It may be noted that the entries in the register Ex.P-16 being Q-7, Q-8 and Q-9 as also the entries Q-10 and Q-11 in the register Ex.P-21 were alleged to be in the handwriting of the accused. 21. A charge-sheet was filed against the accused alleging that due to business losses he could not maintain his family and hence decided to murder his wife and his children and in furtherance thereof purchased sulphas tablets and brought the entire family to Delhi and checked in Hotel Gautam where room No.6 was allotted to the family and that in the intervening night of 4th and 5th July 2005 he administered sulphas tablets to his wife and his daughters. Before poison could take effect on the daughters he strangulated them to death. His wife died due to poisoning and the accused fled from the hotel till he was apprehended by the police at Railway Station Hazrat Nizamuddin. The charge-sheet heavily relied upon the disclosure statement of the accused pursuant Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 16 of 58 whereto the dupatta used by him to strangulate his youngest daughter Jyoti was recovered at the instance of the accused as also the recovery of the polythene bag containing a gumcha and a handkerchief from the ledge beneath the window of the room towards Church Mission Road, which gumcha and handkerchief were found with traces of aluminium phosphide. The conduct of the accused i.e. the pointing out memos pertaining to the shop from where he purchased the sulphas tablets and the shop of Rajesh Babbar where he sold the gold finger ring of his wife were also relied upon as evidence against the accused. The report Ex.PW-20/A of the finger print expert which opined that chance finger prints Q-2, Q-4 and Q-5 lifted from the steel tumbler and the inner cup of the Mayur jug seized from the room where the dead bodies were found as also the report Ex.PW-38/L of the handwriting expert which opined that the writing Q-1, Q-2, Q-2/1, Q-3, Q-3/1, Q-4 and Q- 4/1 in the exercise book Ex.P-14 of Kumari Alisha; the writings Q-7 to Q-11 in the two registers Ex.P-16 and Ex.P-21; the writings Ex.PW-18/D and Ex.PW-18/E, the entries in the ledger Ex.P-22 and the specimen handwriting of the accused taken by the investigating officer when the accused was in police custody were in the hand of the accused were relied upon. 22. At the trial, Rajesh Babbar PW-1 deposed that the accused accompanied by Shiv Kumar had visited his shop on Death Ref. No.1/2008 and Crl.A. No.294/2008 Page 17 of 58 26.6.2005 and had sold a lady‟s gold ring to him for which he had paid Rs.900/- to the accused. Shiv Kumar PW-11 deposed that he had accompanied the accused to the shop of PW-1 on 26.6.2005 and that in his presence the accused had sold the ring of his wife and had received Rs.900/-. It may be noted that in response to Question No.8 where said circumstance i.e. the accused‟s financial crisis and his selling the gold ring of his wife for which he received Rs.900/- was put to him, he admitted the same to be correct. 23. PW-10 Dilip Kumar Sharma deposed that he was the owner of Vaishno Hotel at 23, Fatehpuri and that on 2.6.2005 the accused along with his wife and children had stayed at his hotel and while checking in had disclosed his name to be Rajiv Kumar son of Madan Babu and had given his residential address