Rajinder vs State(Nct Of Delhi) & Anr

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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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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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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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

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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

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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

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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

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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

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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

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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

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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

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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