[ 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
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meantime 2
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 3
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 4
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 5
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 6
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 7
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 8
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 9
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 10
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 11
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 12
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
