Jai Bhagwan @ Kabar vs State
2009 Latest Caselaw 90 Del

i.12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                         Date of Decision : 15th January, 2009


+    CRL.A. 104/2007


     JAI BHAGWAN @ KABAR                 ..... Appellant
              Through: Mr. L.D.Mual, Advocate

                               versus

     STATE                                 ..... Respondent
                    Through:   Ms. Richa Kapoor, 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. (Oral)

1. On 24.4.2003 at 9:50 P.M. DD Entry No.59-B, Ex.PW-

7/A, was recorded by PW-7 Const. Bhim Singh to the effect that

a wireless message has been received informing that out side

House No.295, Bhorgarh, Narela, a man has been murdered.

That in the house of Ram Kumar, Kumharon Wali Gali, a husband

has been inflicted a stab wound.

2. This swung the police into action. SI Rajinder Dabas

PW-10, accompanied by PW-13 Const. Chattar Singh, and PW-14

Const. Satbir, proceeded to the spot and reached the place of

the occurrence. Simultaneously, one other police officer, ASI

Ramesh Chander PW-18, who had received a wireless message

also reached the spot.

3. A dead body was lying on the road with a knife thrust

in the abdomen region.

4. SI Rajesh PW-11, from the mobile crime team as also

Const. Chunni Lal (Photographer) PW-19, reached the spot. 21

photographs, Ex.PW-19/A.1 to Ex.PW-19/A.21; (negatives

whereof are Ex.PW-19/B.1 to Ex.PW-19/B.21) were taken.

Inspector Mahipal Singh PW-15, posted as SHO PS Narela also

reached the spot. Maya Devi PW-3, wife of the deceased Ram

Kumar was found present at the spot. PW-15 recorded the

statement Ex.PW-3/A of Maya Devi wherein she named the

appellant as the killer of her husband, and made an

endorsement thereon, Ex.PW-15/A, and at 11.50 PM handed

over the same to Const. Satbir PW-14 for registration of a FIR.

Satbir took Ex.PW-3/A to the police station and handed over the

same to SI Panna Lal PW-16, who recorded the FIR Ex.PW-16/A

at 12.05 AM on 25.4.2003. PW-15 prepared the site plan,

Ex.PW-15/B, recording therein the place at point marked „A‟

where the deceased was stated to have been stabbed and the

place at point marked „B‟ where the dead body was found.

5. At the spot 4 chappals were taken possession of;

blood and earth samples were lifted vide memo Ex.PW-3/B. The

dead body was found, as noted above, with a knife still inside

the body. It was sent for post-mortem to Babu Jagjivan Ram

Memorial Hospital, where, on 25.4.2003 Dr.B.N.Acharya PW-2,

conducted the post-mortem and gave the report Ex.PW-2/A. The

sketch of the knife which was removed from the body was

prepared by him being Ex.PW-2/B.

6. Apart from Maya Devi PW-3, the wife of the

deceased, Ashok Kumar PW-4, the brother of the deceased was

also at the spot when the police reached. His statement under

Section 161 Cr.P.C. was recorded. Statement of Manju PW-5,

the daughter of the deceased was also recorded under Section

161 Cr.P.C.

7. Since in her statement Ex.PW-3/A, made to PW-15,

Maya Devi informed that the appellant was the assailant, the

police set out to apprehend the appellant. The appellant was

apprehended on 26.4.2003 as per arrest memo Ex.PW-10/A.

The shirt Ex.P-1 and the pant Ex.P-2 which were worn by the

accused were seized by the police vide seizure memo Ex.PW-

10/C.

8. Appellant was interrogated by PW-15 in the presence

of SI Rajinder Dabas PW-10, HC Savinder PW-20 and Const.

Baljeet Singh PW-21. He made a disclosure statement Ex.PW-

20/A. Pursuant to the disclosure statement the accused took the

police and vide pointing out memo, Ex.PW-10/B, pointed out the

place where he admitted having committed the crime.

9. Armed with the aforesaid material the challan was

filed accusing the appellant of having murdered the deceased

Ram Kumar. A charge was framed against the appellants for

having committed an offence punishable under Section 302 IPC.

10. At the trial, apart from examining afore noted police

officers who proved the receipt of initial information, the police

visiting the site of the occurrence, registration of FIR, recording

statements of the witnesses during investigation, seizure

memos, disclosure statement of the accused, photographs taken

of the site, preparation of the plan of the site, the doctor who

conducted the post-mortem of the deceased, Maya Devi, wife of

the deceased, his brother Ashok Kumar and his daughter Manju

were examined as PW-3, PW-4 and PW-5 respectively. FSL

report Ex.P-X and Ex.P-Y pertaining to the clothes of the

deceased and the objects recovered from the site in relation to

presence of blood thereon was also filed.

11. PW-3 deposed that her husband was working as a

mistri. Since her husband had taken ill he had requested her to

sell vegetables and hence she used to sell vegetables from a

street behind a school in the industrial area at Village Bhorgarh.

She deposed that her husband used to help her in the evening

to sell vegetables. She deposed that on 22.4.2000 the accused

Jai Bhagwan (who was identified by her in Court) came to them

i.e. herself and her husband and told her husband to go to one

Bhim and bring money from him at which she told the accused

that her husband would not go to Bhim upon which the accused

got angry and threatened that they i.e. she and her husband

would have to bear the consequences. She further deposed

that on 24.4.2000, the accused met them at the chowk on the

way while they were proceeding to their house after selling

vegetables and that the accused gave a knife blow on the

abdomen of her husband and ran away. She deposed that her

husband chased the accused by 10 to 15 steps and fell down.

Her husband succumbed to the injuries. She deposed that

public had gathered and her husband‟s brother, Ashok, PW-4,

had also reached the spot. She deposed that soon thereafter

the police came to the spot and her statement Ex.PW-3/A was

recorded which bore her signature at point „A‟. She deposed

that the police recovered chappals from the spot vide seizure

memo Ex.PW-3/B. She deposed that the knife remained inside

the body of her husband as the accused had run away leaving

the knife behind. She deposed that her daughter Manju also

arrived at the spot when proceedings were being conducted by

the police.

12. On being cross examined she denied that she was

deposing falsely. She stated that she identified the dead body

of her husband at the spot.

13. Relevant would it be to note that a suggestion was

given to Maya Devi during cross examination that she and

Ashok had murdered Ram Kumar. Needless to state, she denied

the same.

14. Ashok Kumar PW-4, deposed that on 24.4.2003 at

around 9:15 or 9:30 PM he had reached Gali Kumhar Wali and

saw many people having gathered. He saw his brother Ram

Kumar lying on the road with a pool of blood having stab injuries

with a knife. He deposed that his sister-in-law Manju was

present at the spot when he reached the spot and that the body

of his brother was removed to the hospital.

15. Relevant would it be to note that Ashok Kumar never

claimed to be an eye witness to the incident. The relevance of

his testimony would be to corroborate Maya PW-3, who claimed

to be present at the site where the unfortunate incident took

place.

16. It would also be relevant to note at this stage that

learned counsel for the accused after getting it recorded during

cross examination of PW-4 that he was asking a question on the

specific instruction of the accused, put a suggestion to PW-4

that PW-4 and Maya Devi were present at the spot and were the

ones who had killed the deceased. Needless to state, the

suggestion was denied.

17. PW-5 Manju, daughter of the deceased, aged 12

years when she was examined on 12.5.2005; being around 10

years old on 24.4.2003 when the unfortunate incident took

place, deposed that at around 8:30 P.M. on 24.4.2003 the

accused had come to their house enquiring about her father and

that she had told him that her parents had gone to sell

vegetables in the industrial area. She deposed that later on she

came to know that her father had been murdered and that the

accused had fled.

18. On being cross examined she stated that she was a

student of Class VI at Nagar Nigam Prathamik Bal Vidyalaya

Village Bhorgarh. She deposed that she learnt that the name of

the accused was Jai Bhagwan after her father was murdered and

not before. She denied the suggestion that she was tutored.

On being questioned as to who gave her the information of her

father being murdered, she informed that a tenant of her uncle

Ratan gave said information to her, and that on receiving the

information she reached the spot at 12:30 A.M.

19. PW-2 Dr.B.N.Acharya deposed that he conducted the

post-mortem of the deceased on 25.4.2003 and gave his report

Ex.PW-2/A which records the following internal injuries:-

"Incised cut mark 2.5 cm length on lateral surface. On medial surface 2 cut mark of 1 cm and 0.5 cm in length. Diaphragm is also cut."

20. At the rear page of the post-mortem report he has

recorded as under:-

"Examination of body shows a metallic knife pierced in Lt. side of chest. On removal one incised penetrating stabbed wound is seen which is present 14 cm from nipple and 17 cm from mid-line. Upper end of the wound is acute and 19 cm below the ant. axillary line and lower end is 23 cm from Lt. axillary line i.e. axillary fold anteriarly. It is placed slightly obliquely. Its margin is clean, cut and regular. Size 5 cm x 2 cm x chest cavity deep. On diasection the wound enters chest cavity in between 6 and 7 by cutting muscle of the chest. It enters the lung as mentioned on front page. Two cut mark of medial surface indicates the knife is used two times. It further cut diaphragm and

stomach.

Total length of track is 18 cm.

Knife removed and handed over to the police in sealed manner with sketch diagram.

Opinion:- Injury on chest is ante-mortem in nature and is caused by sharp edged weapon as removed from the body. Death is due to hemorrhagic shock consequent on injury to left lung. Injury of lung Lt. is sufficient for causing death in ordinary course of nature. Time since death is about 14 hrs back."

21. Believing the testimony of PW-3, PW-4 and PW-5, in

view of the post-mortem report, Ex.PW-2/A, the learned Trial

Judge has convicted the appellant and has sentenced him to

undergo imprisonment for life and pay a fine of Rs.5,000/-, in

default to undergo RI for 5 months.

22. Before the learned Trial Judge various submissions

were urged, but since in appeal, all have not been urged before

us, we shall be dealing with the submissions urged at the

hearing of the appeal today; being as under:-

A. First submission is that in the disclosure statement of

the accused Ex.PW-20/A, it stands recorded that the accused

informed the police of having lifted the knife from the hand cart

of one Raees, a meat seller. It is urged that only by examining

Raees could the police establish the identity of the knife and

possession thereof with the accused. It is urged that by not

examining Raees the prosecution failed to establish that the

accused was ever in possession of the knife. Linking this

argument further and urging a sub-submission thereof, it is

urged that the knife in question was not recovered at the

instance of the accused and hence the same could not be linked

(as the weapon of offence) with the accused.

Before us, learned counsel for the appellant has cited the

decision reported as AIR 1983 SC 349 State of U.P. Vs.

Jageshwar & Ors. on the point of recovery of a weapon of

offence and linkage thereof with the accused.

B. Second submission urged is that there is a

contradiction in the ocular and the medical evidence. It is urged

that the same discredits Maya Devi PW-3. The factual matrix of

the submission is the statement by Maya Devi that the accused

inflicted a single knife blow on the stomach of her husband and

that the post-mortem report Ex.PW-2/A, contents whereof have

been noted in paras 19 and 20 above which record that the lung

has two cut marks on the medial surface indicating that the

knife had been used twice. It is urged that when PW-2, the

author of the post-mortem report was examined, he

categorically deposed that two cut marks of medial surface

indicates that the knife was used two times. It is accordingly

urged that since Maya Devi categorically deposed that the

accused inflicted only one knife blow and thereafter fled from

the spot, the second injury on the person of the deceased

remains unexplained. Hence, it is urged that Maya Devi has to

be disbelieved. Alternatively, it is urged that benefit of doubt

should be given to the accused.

C. The third submission urged is, with reference to the

report of the forensic science laboratory dated 20.10.2004,

Ex.P-X and Ex.P-Y, which show that the pant and the shirt, Ex.P-

1 and Ex.P-2, worn by the accused, stated to have been seized

vide seizure memo Ex.PW-13/B, were never sent for opinion and

hence the claim of the police that blood stained pant and shirt

were seized from the accused remained unproved.

D. With reference to the recovery memo, Ex.PW-3/B,

wherein it is recorded that four chappals were seized by the

police from the spot it is urged that it has not been established

that any chappal out of the said four belonged to the accused

and hence the same do not link the accused to the crime or

being at the spot of the crime. Alternative/additional

submission made pertaining thereto is that the presence of

many persons at the spot is evidenced by the recovery of the

chappals and this probablizes that there were more than one

person acting in concert when the deceased suffered injury.

E. With reference to the site plan, Ex.PW-15/B where

the place where the deceased is stated to have suffered the

injury is shown at point A and the place where his dead body

was found is shown at the place mark B, lack of blood trail being

shown therein, vis-à-vis the statement, Ex.PW-3/A, made by PW-

3 to the police to the effect that after the accused inflicted the

knife blow in the abdomen of her husband and fled she stated,

"mere pati ne bhi khoon se lathpath halat main uska peecha

kiya tha"; it is urged that the site plan does not conform to the

statement of PW-3 and hence, it is submitted, that PW-3 gave a

false story to the police. Before us, learned counsel for the

appellant cites 1993 Crl. LJ 1801 (SC) Bhimappa Jinnappa

Nagnaur Vs. State of Karnataka.

F. With reference to the site plan Ex.PW-15/B another

submission is made that the location of house No.242 has not

been shown therein. Referring to the testimony of PW-19 Const.

Chunni Lal, the photographer who took the photographs of the

site, it is pointed out that PW-19 categorically stated that the

photographs taken by him pertained to the dead body which

was lying in the gali near house No.242. In a nut shell,

submission made is that the prosecution has failed to establish

the place where the incident took place.

23. The first plea pertaining to Raees not being

examined has been repelled by the learned Trial Judge with the

findings in paras 47 and 48 of the decision as under:-

"47. The counsel for the accused urged that as per disclosure of the accused Ex.PW-20/A, he procured the knife allegedly used in commission of offence from Raees. Thus, Raees was a material witness. The IO did not examine the said Raees U/s 161 Cr.P.C. and did not cite him for the reason best known to him. According to him the same introduces a fatal lacuna in the case of the prosecution. In support of his submission, he relied upon decision of the Hon‟ble Supreme Court in Pratap Singh vs. State 2005 AIR SCW 6158 in which it was held that during investigation IO noticed that 2 witnesses had also witnessed the occurrence but their statements were not filed before Ld.Trial Court along with charge sheet, drawing adverse inference for non-examination of said witness is proper, benefit of said non filing of statements must be given to defence and not to prosecution.

48. I have carefully considered the arguments and judgment cited by the Counsel for the accused and feel that the same is distinguishable. Eye witness stands on a different footing than a person from whom weapon used in the commission of offence is procured. The later does not have any knowledge about the commission of the offence and his examination cannot be said to fatal."

24. We note that the learned Trial Judge has not

discussed the submission pertaining to the knife as per the

second limb of the submission urged and as noted in the latter

part of sub-para A of para 22 above. We shall deal with the

same a little later.

25. Unfortunately, the second submission as noted in

sub-para B of para 22 above has not been discussed by the

learned Trial Judge.

26. The third submission as noted in sub-para C of para

22 above has again not been dealt with by the learned Trial

Judge. But, we note a vague reference thereto in para 46 of the

impugned decision which reads as under:-

"46. Yet another argument raised by Ld.Defence counsel is that according to the case of the prosecution the wearing clothes of the accused were containing blood stains though he was arrested after 2 days on 26/4/03 as per seizure memo Ex.PW-10/C. According to him no person would continue to wear blood stained clothes so as to leave a scope with the police to collect evidence against him. The argument does not help the accused at all. Every person does not have the same intelligence and cannot think on the lines to save himself. The accused was a layman. He might not have got the opportunity to change the clothes in the fear of being caught. He might be trying to conceal himself."

27. The fourth submission as noted in sub-para D of para

22 above has been dealt with by the learned Trial Judge in para

41 of the decision. It reads as under:-

"41. The Ld.Defence counsel urged that according to the case of the prosecution 4 + 1 chappals were recovered in front of house no.124 but PW-3 did not identify any of the said chappals as belonging to her husband. From this he wanted me to hold that the prosecution has done some paddling with the case and the same creates doubt. The argument is quite far fetched. The police seized

whatever was available at the spot. Those chappals may be belonging to the accused or the public persons who gathered at the spot. It may be that the police could not lay its hand on the chappals of the deceased. Thus, there was no occasion for PW-3 to identify the seized of chappals."

28. The submissions number 5 and 6 as noted in sub-

para E and F of para 22 above have been dealt with by the

learned Trial Judge in paras 31 and 38 of the decision as under:-

"31. On the other hand the Ld.Defence counsel submitted that according to case of prosecution there are more than one places of incident. According to rukka Ex.PW-15/A incident was near Chopal chowk. The same thing was deposed by PW- 3 and PW-11. But according to DD No.59B copy of which is Ex.PW-7/A, the incident took place near house No.295, Bhorgarh, Narela. PW-10 & PW-18 gave the same version. PW-15 gave the 3rd version that according to DD No.59B Ram Kumar was murdered at Kumharonwali gali, village Bhorgarh, Narela. PW-19 added that he reached near house No.242, gali Kumharonwali gali, village Bhorgarh. From this he wanted me to hold that the prosecution has failed to establish the spot of occurrence. I am not impressed by the argument. Substantially the place of occurrence is near the house of Rajender Panchal, Chopal Chowk, Bhorgarh, Narela. Everybody has his own powers of perception, retention and reproduction.

xxx xxx xxx

38. The Ld.Counsel for the accused did not miss to argue that according site-plan Ex.PW-15/B the victim walked from point A to point B, after being hit with knife. So blood must have fallen from the wound on the earth but the site plan does not show any such blood. The argument is based on conjecture. Statement Ex.PW-3/A shows that the witness ran for 20 22 paces only which

must have taken less than two minutes. The attack was fresh. It is just possible that blood did not come out in such short span."

29. Before dealing with the contentions urged before us

today, the broad contours of the case of the prosecution and the

evidence brought on record may be briefly noted. The accused

had wanted the deceased to bring money from Bhim and on

22.4.2000, PW-3 had told him that her husband would not do so

at which the accused had threatened the deceased and his wife

to face the consequence. On 24.4.2000 he accosted the

husband and wife at the chowk at around 9.30 PM and struck a

blow in the abdomen of the deceased and fled leaving behind

the knife in the abdomen of the deceased. PW-3 is a natural

witness and nothing has been brought out in her testimony save

and except the alleged discrepancy vis-à-vis the post-mortem

report. (With which we shall be dealing shortly herein after).

Her evidence is consistent. Her presence at the spot has in fact

been admitted by the appellant evidenced by the suggestion to

her that she and PW-4 had murdered the deceased. Nothing

has been shown to us to discredit Manju, PW-5 whose testimony

brings out that the accused had gone to the house of the

deceased at 8.30 PM and Manju told him that her parents had

gone to sell vegetables. Testimony of PW-4, Ashok also

establishes that Maya Devi was present at the spot when her

husband was attacked. The statement of Maya Devi to the

police, Ex.PW-3/A recorded sometimes prior to 11.50 PM shows

her being present at the spot when the police reached the spot

after receipt of information at 9.15 PM vide Ex.PW-7/A. It would

be relevant to note that no motive to falsely implicate the

accused has been brought out while cross-examining PW-3.

30. Pertaining to the first plea urged it would have been

relevant, only if there was no direct evidence to link the

appellant with the offence. It is not a case of a weapon of

offence being recovered pursuant to a disclosure statement

made by the accused. The knife in question was left in the

abdomen of the deceased when the accused fled away and was

removed from the body of the deceased at the time of post-

mortem. The decision relied upon in Jageshwar's case (supra)

does not apply in the instant case inasmuch as in said case as

many as 14 or 15 persons were alleged to have participated in

the commission of the crime and one gun was used which was

ostensibly recovered pursuant to a disclosure statement made

by accused Durga from one Sunder Ahir from whom Durga

stated that he had borrowed the gun. The recovery was

effected at the instance of another accused. In said

circumstance non-examination of Sunder Ahir was held to be a

ground to doubt the use of the gun by accused Durga.

31. The second plea pertaining to the alleged

contradiction in the ocular evidence i.e. testimony of Maya Devi

PW-3 and the medical evidence Ex.PW-3/A has been carefully

looked into by us. At first blush the submission looks attractive.

But, a deeper consideration reveals the hollowness thereof. The

opinion recorded in the post-mortem report clearly records, at

the first instance: "on removal one incised penetrating stabbed

wound is seen which is present 14 cm from nipple and 17 cm

from mid-line. Upper end of the wound is acute....... It is placed

slightly obliquely. Its margin is clean, cut and regular."

32. The aforesaid evidences only a single external wound.

The reference to the second wound appears at two places in the

report. The first is while noting the internal injuries wherein it is

recorded "Incised cut mark 2.5 cm length on lateral surface. On

medial surface 2 cut mark of 1 cm and 0.5 cm in length.

Diaphragm is also cut." The second is wherein it is recorded "On

diasection the wound enters chest cavity in between 6 and 7 by

cutting muscle of the chest. It enters the lung as mentioned on

front page. Two cut mark of medial surface indicates the knife is

used two times. It further cut diaphragm and stomach. Total

length of track is 18 cm".

33. Unfortunately, PW-2 was not questioned to obtain

clarifications as to how with a single external wound, two

internal cut wounds could be inflicted. Had the witness been

further questioned he would have obviously answered the same

and the Court would have had the benefit of expert opinion. In

the absence thereof we have to rely on human anatomy. The

lungs are just above the diaphragm. There is only one incised

cut mark of 2.5 cm length on the lateral surface of the lung. The

two internal cuts noted are on the medial surface. Though not

recorded, from the nature of the injury recorded in Ex.PW-2/A it

is apparent that the medial surface has to be of the lung. To put

it with clarity, on the abdomen only one external cut has been

noted between rib No.6 and 7. This evidences that the knife has

pierced the abdomen (in fact lower portion of the chest on the

left side and not the front and hence only one incised cut of 2.5

cm length on the lateral surface of the lung stands inflicted).

Two cut marks have been recorded on the medial surface of the

lung. The fact that the knife pierced 18 cm inside the body and

had a total length of 28.9 cms of which only 9 cms was the

length of the handle and the remaining i.e. 18.9 cms, the length

of the blade, has to be kept in mind. Now, one can easily

understand as to what has happened. With the first blow, the

knife penetrated into the body after cutting the skin and the

muscle underneath. It penetrated the lateral surface of the lung

and cutting through the lung penetrated the medial surface of

the lung. The knife was pulled back a little and re-penetrated

with a slight deviation causing the second cut in the medial

surface of the lung. This could have happened when the

deceased probably retracted when the blow was inflicted,

causing the knife to recede, followed by the accused once again

jabbing the knife. In any case, the entry wound into the body is

only one; and hence Maya Devi has rightly spoken of only one

stab wound; which obviously was what she could see.

34. The third submission is neither here nor there

because even if recovery of the blood stained shirt and the pant

from the appellant is removed from the evidence, it makes no

difference inasmuch as instant case is not of circumstantial

evidence but is one of direct evidence. Similarly, the issue of

chappals being seized vide recovery memo Ex.PW-3/B and none

being linked to the appellant is irrelevant because the

prosecution has proved the case by direct evidence.

35. The last two submissions pertaining to the site plan

and the decision in Bhimappa's case (supra) may now be dealt

with. The decision in Bhimappa's case (supra) is distinguishable

for the reason that the said case did not deal with an issue of a

site plan. In said decision the testimony of PW-1 therein was

tested with respect to the evidence on record that the distance

between the place where the injured was attacked and the place

where the dead body was found were 400 feet apart and there

were more than 100 bleeding injuries on the deceased and yet

no trail of blood was found between the two places. In said

circumstance it was held that no trail of blood assumed

importance.

36. In the instant case the external injury on the body of

the deceased is one; two internal wounds were inflicted only on

the medial surface of the lung. The distance walked by the

deceased from the place where he was stabbed to the place

where he fell is 10 to 15 steps away. The injured walked with a

knife in his stomach. Any person in said injured condition would

be clutching and pressing his stomach thereby preventing large

quantity of blood flowing out. Further, the wound is above the

stomach cavity and hence would result in the blood first

accumulating in the stomach cavity and thereafter spilling on to

the road. By this time the injured had already covered the

distance of 10 to 15 steps. Obviously, some blood would flow

out and would be visible on the clothes of the injured, and hence

the statement of PW-3 to the police that soaked in blood her

husband ran after the accused.

37. The non-recording of house number 242 on the site

plan is immaterial because the stabbing took place, as disclosed

by PW-3, at the chowk which has been shown in the site plan

Ex.PW-15/B and the place at the chowk where the deceased was

attacked has been marked at point „A‟. The gali i.e. the road has

been duly shown and the place where the injured fell down and

died has been shown at the point marked „B‟. Under the

circumstances it hardly matters that the location of the house

was not given. The only importance of reference to house

number is the testimony of the photographer PW-19 who stated

that he took the photographs of the dead body lying in the gali

near house No.242. It may be emphasized that the incident did

not take place inside house No.242 nor is there any relevance of

the said house. We could have appreciated if the case of the

prosecution was that a particular witness saw the incident from

house No.242 or that the accused ran inside the said house or

likewise. The evidentiary value of a site plan has been discussed

in the decision reported as AIR 2003 SC 3408 State of UP Vs.

Babu & Ors. In said case the eye-witnesses stated to have

identified the accused because of torch light used by them and

the gas light. In the site plan there was an omission to indicate

the location of the gas light in the site plan. The accused

persons were known to the witnesses. Under the circumstances

the omission in the site plan to indicate the location of the gas

light was not held to be fatal. We may add that this means that

a site plan is not to be treated as a substantive evidence.

38. We find no merits in the appeal. The appeal is

dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

JANUARY 15, 2009 mm/dk