[ Non-Reportable ]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 723 OF 2010

Rajinder …..Appellant

                   Versus

State (NCT of Delhi) & Anr.                               ….Respondents

J U D G M E N T

HARJIT SINGH BEDI, J.

This appeal arises out of the following facts:

1. At about 3 p.m. on 25th of August 1993, Murari Lal PW-1  

along with his wife Saroj had gone to the crockery shop of  

his brothers Gobind and Ashok PW-5 bearing No.2649,  

Shadipur Main Bazar.  He parked his scooter near the  

shop and then asked his uncle Jagdish, who was present  

at his shop very close by, as to why his sons had abused  

Saroj.  This enquiry annoyed Jagdish and he picked up a  

lathi  and  attempted  to  assault  Saroj.   Murari  Lal  

thereupon  intervened  to  save  his  wife  but  in  the

meantime  

Rajinder and Dharambir, sons of Jagdish, came rushing  

to that place carrying a scissor and a knife respectively.  

Dharambir thereupon gave knife blows to Murari Lal in  

the  abdomen  whereafter  he  fell  down  on  the  ground.  

Gobind  raised  an alarm and tried to save  Murari  Lal  

from further injury.  Rajinder and Dharambir, however,  

attacked Gobind with their weapons and on receiving the  

injuries he too fell on the ground.  This incident was seen  

by PW-2 Anil Kumar, PW-3 Saroj Bala and PW-5 Ashok  

Kumar.  Gobind and Murari were immediately removed to  

the  Ram  Manohar  Lohia  Hospital.   It  appears  that  

information  was  received  in  Police  Station  Patel  Nagar  

about a quarrel having taken place in Shop No.2666 in  

the  Shadipur  Main  Market.   This  information  was  

recorded  in  the  daily  diary  register on which Sub-

Inspector  Shiv  Kumar  along  with  other  police  officials  

reached the place of incident and found that the injured  

had  already  been  removed  to  the  hospital.   The  Sub-

Inspector thereupon went to the hospital  and collected  

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the  medio-legal  

report with respect to the injuries of Murari Lal and also  

the information that Gobind had been brought dead to  

the hospital.  The Sub-Inspector also made an enquiry as  

to  the  fitness  of  Murari  Lal  and  after  the  doctor  had  

certified as to his fitness, his statement was recorded and  

on its basis the FIR was duly registered.  In the FIR it  

was  mentioned  that  the  complainant  and  the  accused  

parties  were  very  closely  related  and  had  shared  a  

common business at one time, but they had fallen out in  

a very nasty manner at a later stage.  On the completion  

of  the  investigation,  a  charge  sheet  was  filed  against  

Jagdish  and  his  sons  Dharambir  and  Rajinder  for  

offences punishable under Sections 302/34 and 307/34  

of  the  IPC  and  they  were  duly  charged  under  those  

provisions and were brought to trial.   

2. The prosecution relied on the evidence of Murari Lal, Anil  

Kumar, Saroj and Ashok Kumar the eye witnesses to the  

incident,  as  also  on  the  medical  evidence.   In  their  

statements recorded under Section 313 of the Cr.P.C. the  

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accused  

pleaded  their  innocence  and  denied  all  the  allegations  

leveled against them.  Rajinder claimed that he was in  

the house of his in –laws with his wife as it was the day  

of Rakhi whereas Dharambir claimed that he was at a  

Patel Nagar Park with some students in connection with  

their studies.  No defence evidence was however led by  

the accused in support of their pleas of alibi.  Jagdish  

took  the  plea  that  in  fact  PW-1  Murari  Lal  and  the  

deceased had dragged him from his shop due to which he  

had  sustained  injuries  and  his  shirt  had  got  blood  

stained on that account and that he had been saved from  

further harm by the crowd that had collected at the site  

and that the injuries suffered by PW Murari Lal and the  

deceased may have been caused by someone from that  

crowd.   

3. The trial court in its judgment dated 30th May 1994 held  

that the prosecution story had been proved beyond doubt  

in  the  light  of  the  eye  witness  account,  the  medical  

evidence  as  well  as  the  fact  that  the  first  information  

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report had been  

lodged within a very short time.  It was found that in the  

light of the doctor’s evidence the injuries could have been  

caused by the scissor and the knife that Dharambir and  

Rajinder were said to be carrying and as the death was  

clearly  homicidal,  the  involvement  of  all  the  three  

accused was spelt out beyond doubt, more particularly  

as  no  evidence  had  been  produced  by  the  accused  to  

prove their  explicit  defence.   It  was also observed that  

Jagdish had not been subjected to a medical examination  

and there was no evidence of any injury to him whereas  

the plea of alibi had not been supported by any witness  

and had remained confined only to the statements under  

Section 313 of the Cr.P.C. of the two accused Dharambir  

and Rajinder.  The trial court accordingly convicted the  

accused for the offences charged and awarded a sentence  

of life imprisonment for the offence of murder and also 7  

years RI on the charge of attempt to murder; both the  

sentences  to  run  concurrently.   The  matter  was  

thereafter taken in appeal to the High Court and the High  

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Court,  while  

confirming the conviction and sentence of Dharambir and  

Rajinder, has allowed the appeal of Jagdish holding that  

though  his  presence  had  been  proved  yet  he  did  not  

share the common intention with his co-accused as he  

had allegedly picked up a lathi from the spot, but had not  

used it.   Jagdish was accordingly acquitted.  The present  

appeal has been filed by Dharambir and Rajinder alone.

4. Mr.  R.S.  Sodhi,  the  learned  senior  counsel  for  the  

appellants has raised two primary submissions before us.  

He has first submitted that it appeared that the place of  

incident had been changed inasmuch that the accused  

had  been  charged  for  having  committed  the  murder  

outside  shop No.  2649 which belonged to  the  accused  

party  whereas  the  finding  of  the  court  was  that  the  

incident had taken place outside shop No. 2666 which  

belonged to the complainant party and this taken with  

the fact that the injuries on the person of Jagdish had  

not  been  explained  by  the  prosecution,  the  entire  

prosecution story appeared to be a concoction.  He has  

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also  submitted  

that Rajinder who had been armed with a pair of scissors  

had apparently caused no injury to the deceased as the  

medical evidence did not support the story and as such  

his case was on the same footing as Jagdish who had  

been acquitted.

5. The learned counsel for the State of Delhi has, however,  

supported the judgments of the courts below.

6. We have heard the learned counsel for the parties and  

considered the submissions very carefully.  It is true that  

in the charge framed against the three accused on the  

12th of February 1992, the allegation was that the murder  

had  been  committed  in  Shop  No.2649,  Main  Bazar  

Shadipur.   The  charge  aforesaid  had  its  basis  in  the  

scaled  plan  Ex.PW9/A  prepared  by  PW-9  Inspector  

Devinder Singh, Draftsman, Crime Branch, Delhi  on the  

pointing out of PWs. Anil Kumar, Ashok and Saroj.  The  

Inspector also deposed  that the scaled plan was 2 cm. to  

1 mtr.  The aforesaid eye witnesses, however (one of them  

Murari Lal being injured) have been very categoric that  

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the  incident  

had taken place in the shop of Jagdish which was Shop  

No.2666 where Murari Lal had gone along with his wife  

to remonstrate as to why he was abusing the ladies of the  

family.   It  appears,  however,  from the evidence,  and it  

has been so found by the trial court and the High Court,  

that  the  defence  could  not  take  advantage  of  this  

apparent discordance as no question was put to them on  

this  score  in  their  cross-examination.   It  is  significant  

that  no  question  was  even  put  to  Sub-Inspector  Shiv  

Kumar  who  had  sent  the  Ruqa  that  the  incident  had  

taken  place  outside  Shop  No.2649  whereas  the  eye  

witnesses’  account  was  that  it  had  happened  outside  

Shop No.2666.  We are of the opinion that this omission  

was not an oversight  and even the facts show that no  

advantage can be taken by the defence on account of the  

conflicting  addresses.   A  perusal  of  the  scaled  plan  

Ex.PW9/A along with the  statement  of  PW-9 Inspector  

Devinder Singh would reveal that the distance between  

Shop No.2649 and 2666 was only 10 to 12 feet in a very  

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crowded market  

and in this  view of  the  matter  the  incident  had taken  

place virtually in between both the shops.  As a corollary  

to the above, the plea of the defence that the injuries to  

Jagdish (since acquitted) had not been explained by the  

prosecution really destroys the substratum of the defence  

version.  In his statement recorded under Section 313 of  

the  Cr.P.C.    Jagdish  had  stated  that  he  had  been  

dragged by the complainant party from his shop to Shop  

No.2649 and injuries had been caused to him by Murari  

Lal and others and that he had been saved by the crowd  

that had collected at that site  and that the injuries to  

Murari  Lal  and  the  deceased  had  been  caused  by  

someone from that  crowd.   Admittedly,  no evidence  to  

that effect has been produced by the defence and save for  

the ipse dixit of Jagdish, there is no basis for this story.  

Undoubtedly, PW-18 G.L. Mehta, the Investigating Officer  

admitted in his cross-examination that in the case diary,  

there  was  a  reference  to  some  injuries  having  been  

suffered  by  Jagdish  and  that  his  medical  examination  

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had  been  

carried out.  It is significant however that Jagdish had  

not claimed at the initial stage that he had received any  

injury  much  less  a  serious  one  at  the  hands  of  the  

deceased  or  Murari  Lal  or  even  during  the  various  

occasions  when  he  had  been  produced  before  the  

Magistrates’  Court  for  remand or  other  purposes.   We  

are,  therefore,  of  the  opinion  that  the  first  argument  

raised by Mr. Sodhi has no merit.

7. We have also examined his second argument with respect  

to the role attributed to Rajinder who is alleged to have  

been armed with a pair of scissors.  For this argument  

Mr. Sodhi has placed reliance on the statement of PW-11  

Dr. Tarun Gupta, the emergency doctor and PW-12 Dr.  

L.K.Birwah, who had conducted the autopsy on the dead  

body.  Dr. Gupta in the MLC Ex.PW11/B observed that  

Gobind had been brought dead to the hospital and that  

the  dead body had three lacerated  wounds on the  left  

angle of the chest wall but when cross-examined, he was  

unable to say whether the wounds had been caused by  

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one  or  more  

weapons or as to the kind of the weapon that had been  

used.  Dr. L.K.Birwah too found three incised wounds on  

the dead body.  They are re-produced herein below:

1.One vertically placed incised wound on left angle of chest of  size 2.3 x 1.2 cm into querry deep. This injury was 12 cm below  the left anterior axillary fold.

2. One incised wound 4 cm. lateral and posterior to the injury  No.1 and 10 cm below the posterior axillary fold placed almost  vertically of size 2.6 cm x 1.5 cm into querry; both the angles of  the wound were acutely cut.

3.  One incised wound on the back of left arm just below the  posterior axillary fold placed obliquely vertical the lateral margin  of the wound showed one small projection whereas the medical  border showed slight bewelling of size 4 cm x 1.5 cm into querry.  After exploration of this injury it had two bifurcated cuts at a  distance of approximately 1 cm.”

The underlined portion would indicate that as this injury had  

two bifurcated cuts, it could have been caused with a pair of  

scissors as the blades opened up in the course of their travel  

through the body.  In his cross-examination, the doctor was  

categoric that the injuries had been caused by a sharp weapon  

which could be single edged or double edged, but he admitted  

that he could not say with certainty if they had been caused  

by one weapon or more than one weapon.  It is also significant  

that PW-3 Saroj deposed that Rajinder had stabbed Gobind on  

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the  left  back side of  

the shoulder and he had been holding the scissor by its two  

handles  and  had  stabbed  the  deceased  with  the  cutting  

portion.  We are, therefore, of the opinion that this argument  

too lacks merit.  We, accordingly, dismiss the appeal.

……………………………………J. (Harjit Singh Bedi)

…………………………………..J. (Gyan Sudha Misra)

New Delhi, Dated: August 12, 2011

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