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whether the wounds caused by 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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                                                    [ 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 

                                 Crl. Appeal  

                               No.723/2010

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 

                                         Crl. Appeal  

                                       No.723/2010

      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 

                                       Crl. Appeal  

                                     No.723/2010

      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 

                                Crl. Appeal  

                              No.723/2010

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 

                                       Crl. Appeal  

                                     No.723/2010

      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 

                                     Crl. Appeal  

                                   No.723/2010

      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 

                                Crl. Appeal  

                              No.723/2010

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 

                                 Crl. Appeal  

                               No.723/2010

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 

                                       Crl. Appeal  

                                     No.723/2010

      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 

                                                 Crl. Appeal  

                                              No.723/2010

      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 

                                       Crl. Appeal  

                                     No.723/2010

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
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