Dharambir & Ors. vs State
2009 Latest Caselaw 4502 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 Judgment delivered on: 6th November,2009



+                 CRIMINAL APPEAL NO. 140 of 1994


DHARAMBIR & ORS.                                         ..... Appellants

                            - versus -
STATE                                                    .....Respondent


Advocates who appeared in this case:
For the Appellants : Mr. D.C.Mathur, Sr. Advocate with Mr. Vikram Singh
                     Pawar, Advocate
For the Respondent : Mr. Sunil Sharma, APP.


      CORAM:
*     HON'BLE MR. JUSTICE BADAR DURREZ AHMED
      HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?(Yes)

2. To be referred to the Reporter or not?(Yes)

3. Whether the judgment should be reported in the digest?(Yes)


                         JUDGMENT

P.K.BHASIN, J

Feeling aggrieved by the judgment dated 28-05-1994

passed by the Additional Sessions Judge whereby the three

appellants were convicted under Sections 302/307/34 IPC and

the order dated 30-05-1994 vide which they were awarded

different sentences of imprisonment and fine they have filed the

present appeal. They have been held guilty of murdering their

close relative Gobind and attempting to murder his brother

Murari Lal (PW-1).

2. The prosecution case is that the relations between the family

members of the deceased and the accused persons were

strained. The accused persons used to abuse ladies in the family

of the complainant party and the incident leading to the murder of

the deceased Gobind and the murderous attack on his brother

Murari Lal on 25/08/91 took place as a result of that strained

relationship between the two families. The crime was registered

by the police on the eye-witness account of the injured Murari Lal

and his version as had been given by him to the police after the

incident and noticed by the learned trial Judge in the impugned

judgment is re-produced below:-

"....... at about 3 p.m. on 25-08-93 Murari Lal along with his wife Saroj had gone to the utensils shop were Gobind and Ashok, his younger brothers were present. He parked his scooter near the shop and then he complained to his uncle Jagdish who was present at his shop by saying as to why his sons abused Saroj un-necessarily at this, Jagdish sprang up towards Saroj with danda in order to attack her. At this, he tried to prevent Jagdish from beating his wife Saroj who in turn got aside in order to save herself but in the meantime, sons of Jagdish namely Rajinder and Dharambir also joined Jagdish and came there armed with scissors and knife. Dharambir then gave the knife blow in his abdomen as a result of which, he started bleeding. His brother Gobind then raised an alarm and tried to release Murari from the clutches of Dharambir and Rajinder. However, Rajinder and Dharambir attacked Gobind with knife and scissors. Gobind received injuries and started bleeding profusely. Gobind fell down on the ground. A large number of people

collected at the spot. He along with Gobind were removed to the hospital....................."

3. The above version of Murari Lal was sought to be

established during the trial by the prosecution by examining four

eye witnesses of the occurrence including the injured-informant

Murari Lal. The other three eye-witnesses were PW-2 Anil Kumar,

PW-3 Saroj Bala and PW-5 Ashok Kumar.

4. When examined under Section 313 Cr.P.C. all the three

accused pleaded their innocence and denied all the allegations

levelled against them by the prosecution. Accused Rajender and

Dharambir took the plea of alibi claiming that at the time of the

occurrence Rajender was at the house of his in-laws with his wife

on the occasion of Rakhi and Dharambir was at Patel Nagar park

with some students in connection with their studies. However, no

evidence was adduced by these accused persons in support of

their plea of alibi. Accused Jagdish took the plea that, in fact,

PW-1 Murari Lal and the deceased Gobind had dragged him from

his shop to their shop due to which he had sustained injuries and

his shirt had got stained with blood and that in fact he was saved

by the crowd collected there and was taken to his shop.

Regarding the injuries sustained by PW-1 Murari Lal and the

deceased, his stand was that injuries might have been caused to

them by someone from the crowd which had collected there

when they were being dragged by them. This accused also did

not adduce any evidence in defence.

5. The learned Additional Sessions Judge found the evidence

of all the eye witnesses wholly reliable and trustworthy and

relying upon their evidence held the three accused guilty of

having murdered Gobind and making an attempt to kill his

brother Murari also.

6. Before us it was not disputed by the learned senior counsel

Shri D.C.Mathur on behalf of the appellants that the death of the

deceased Gobind was homicidal. That fact is even otherwise fully

established from the evidence of PW-11 Dr. Tarun Gupta who had

attended to the deceased immediately on being brought to RML

Hospital and the autopsy surgeon PW- 12 Dr.L.M.Baruah who had

conducted post-mortem examination on the body of the

deceased. PW-11 Dr. Gupta deposed that the deceased had been

brought dead to the hospital and that on examination of the body

of the deceased he had found three clean lacerated wounds on

the left lateral chest wall, one of which was two inches long along

posterior axillary line, another was one inch long along anterior

axillary line and the third one was two and half inch is long from

the lateral aspect of the left arm. This witness also proved the

MLC of the deceased which is Ex.PW-11/B according to which the

injuries were shown to have been caused by a sharp edged

weapon. PW-12 Dr. Baruah had deposed that he had found the

following external injuries on the body of the deceased at the

time of post-mortem examination:-

"1. One vertically placed incised wound on left angle of chest of size 2.2 cm 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 vertically. The lateral margin of the wound showed one small projection whereas the medial border showed slight bevelling 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. It had not cut any major blood vessels. The depth of injury was about 3.5 cm."

About the internal injuries, the doctor had stated that

abovenoted injury no. 1 had entered the chest cavity through the

5th inter-costal space and was passing medially and had cut the

medial border of left lung (upper lobe) and then it had cut the

pericardium and then the left ventricle of the heart and then

coming out through the right ventricle of the heart. The total

depth of this injury was about 10 cm. Injury no. 2 had also

entered the left chest cavity through the 6th intercostal space

extending medially and downwards. Total depth of this injury was

about 11 cms. In the opinion of this doctor, injury nos. 1 & 2,

noticed above, were individually sufficient to cause death in the

ordinary course of nature and the cause of death was due to

shock and haemorrhage resulting from these injuries. PW-12

proved his report which is Ex. PW-12/A. From this evidence of

the two doctors, it thus stands proved that the death of the

deceased was homicidal.

7. However, Mr. Mathur seriously challenged, on various

grounds, the reliability and correctness of the prosecution case

and the findings of the trial Court that the three accused-

appellants were responsible for the murder of the deceased

Gobind. We shall now examine those grounds of challenge but,

before doing that, we would like to notice the relevant parts of the

evidence of the eye witnesses. We begin with the evidence of the

injured-complainant PW-1 Murari Lal. The relevant part of his

testimony is extracted below:-

"I know all the three accused persons namely Dharambir, my cousin brother accused Rajinder my cousin brother and accused Jagdish, my uncle, present before the Court. My father has a utensils shop in Shadipur Bazaar vide shop No. 2649, Main Bazar, Shadipur. The accused Jagdish has a cloth shop No. 2666 in front of the shop of my father. I also know Krishan & Vishnu, who were my partners in the Iron & Steel business at NOIDA. Said business continued from 1986 to March 1990. The accused persons had been telling against me to my said partners Vishnu and Krishan and it led to the dissolution of partnership. The accused persons has sided with my partners Vishnu and Krishan at the time of dissolution of the firm. On this account, relations between me and the accd. persons became strained. Thereafter, the accused persons had been abusing us, being my wife, my younger brother‟s wife and my sister. On the Tuesday, prior to the occurrence, the accused Jagdish and his son abused and uttered filthy words to my wife and the wife of my younger brother and sister.

On the eve of rakhi on 25.8.91 at about 3.00 p.m. I had gone to the shop of my father at Main Bazar, Shadipur, with my wife Smt. Saroj, in a TSR. We got the TSR parked outside the

shop of my father. We then went to the accd‟s Jagdish‟s shop to him. I asked my uncle Jagdish, as to why he was abusing and used to utter filthy words to our ladies. My wife also enquired the same from the accused Jagdish. The accused Jagdish then bounced upon my wife Saroj with a danda to beat her. I apprehended my uncle Jagdish with the danda to save my wife Saroj. My wife stood by the side. In the meantime, the accused Dharambir came out from the shop of Jagdish and stabbed me with knife in my back; my brother Gobind came to my rescue; the accused Rajinder who had a scissor with him and Dharambir with above knife stabbed my brother Gobind. The accused Dharambir stabbed with the knife at 3/4 places in his left arm-pit. The accd. Rajinder stabbed my brother Gobind on the same side towards the back i.e. near left shoulder with the scissor. Gobind fell on the ground on receiving the injuries, my jija Anil Kumar came there; my brother Ashok Kumar was also there; they both removed Gobind to the hospital, I came on foot uptil the red-light signal, and then went to the hospital in the same TSR with my Jija and brother Ashok and Gobind. Gobind was declared dead by the doctor. Police came in the hospital and recorded my statement Ex. PW-1/A signed by me at point A..........."

8. The relevant part of the examination-in-chief of the next eye

witness PW-2 Anil Kumar, as recorded by the trial Court is re-

produced below:-

"I know all the three accd. Persons present in Court. I know PW-1 also who is my relative. The father of PW-1 Murari Lal has a shop in Main Bazaar Shadipur of utensils and accd. Has shop of cloth opposite to his shop.

On 25.8.91 at about 3 or 3.15 p.m. I had gone to main Bazar Shadipur to meet my relation Om Parkash, father-in-law and my brother-in-law; I saw a quarrel going on outside the shop of accd. Jagdish; the quarrel was between the three accused persons present in Court and PW-1 Murari Lal; The accd. Rajinder with a scissor and accd. Dharambir with a knife were stabbing to Gobind; Rajinder gave stab injuries with scissor on the left back shoulder of Gobind while Dharambir was stabbing with the knife in the left armpit of Gobind from the front side. The accd. Dharambir stabbed four or five times to Gobind; accd. Rajinder also stabbed once or twice; There were two stab injuries to Gobind, with knife and the third injury on the back shoulder to Gobind was with scissor; I also saw injuries on the person of PW Murari, which was bleeding from

his back. Gobind fell down on the ground on account of the stab injuries. I tried to save Gobind; the accd. Rajinder & Dharambir ran away from the spot. I did notice about accused Jagdish as to if he remained there or ran away. The accused Jagdish was present during quarrel at the spot and was having danda with him, when I went to rescue Gobind accused Jagdish uttered filthy words „Maaro Behan Chodon Ko‟. I removed Gobind to the hospital and my brother in law, Ashok was also with me, in a TSR. PW-1 Murari went with us i.e. with our TSR on foot uptil the chowk and from there he was also taken in the TSR and we went to the hospital................................."

9. PW-3 Smt. Saroj Bala‟s version of the occurrence is like this:-

".................On the rakhi of 1991 being 25th of August, at about 3.00 p.m. I along with PW1 my husband had come to the shop of my father-in-law in Main Bazar, Shadipur, in a TSR from NOIDA, the TSR was parked near the said shop. I and PW-1 enquired from accused Jagdish as to why he used to abuse us including to my sister-in-law(nanad) and other ladies of our family. The accused Jagdish pounced upon me with a danda. I was saved by my husband PW1. The accused Dharambir & Rajinder came from inside the shop. Accused Dharambir stabbed my husband PW1 with a knife in his back, my devar Gobind raised an alarm and came to the rescue of my husband PW1, the accused Dharambir and Rajinder then stabbed my devar Gobind, the accused Dharambir stabbed with knife to Gobind and accused Rajinder stabbed with scissor to Gobind. Dharambir stabbed from front side in the left armpit of Gobind with a knife while accused Rajinder stabbed with scissor to Gobind on his left back side of his shoulder ...................."

10. PW-5 Ashok Kumar, brother of the deceased and PW-1, is

the fourth eye witness of the occurrence. His narration about the

incident is also being re-produced below:-

"......................On 25.8.91 at about 3 p.m. I was present at the utensils shop in Main Bazar, Shadi Pur; the accd. persons have also a shop there of cloth. My brother Gobind was also present with me in my above shop. We and accused persons had strained relations with each other. There was a partnership in NOIDA between Vishnu and Jagdish and us. My brother Murari was having strained relations with them. Our above partnership could not continue and same was dissolved about one and half

years prior to the above occurrence. My uncle Jagdish had sided the opposite party in the said dissolution. He used to abuse the ladies of our house. On the Tuesday, prior to the occurrence, the accused Jagdish had uttered filthy language to the ladies of our house. On the day of occurrence, as above, my brother Murari and my Bhabhi Saroj had come on a TSR at our shop at the above place from NOIDA. They had got parked the TSR near the shop. My Bhabhi Saroj enquired from accused Jagdish as to why he used to abuse and give filthy words. My uncle Jagdish pounced upon my bhabhi Saroj with a danda. My brother Murari came to her rescue and my Bhabhi went towards a side. Rajinder & Dharambir accused came with scissors and knife from inside the house. Accused Dharambir was having a knife and accused Rajinder had a scissors. Dharambir hit on the back of Murari with knife resulting in bleeding. Gobind raised an alarm and went to his rescue. Dharambir stabbed Gobind on the left side of his chest with knife. Rajinder accused hit with scissors on the left back side of shoulder to Gobind..........................................."

11. From the evidence extracted above it is clear that all of

them are closely related to each other and to the deceased and

their relations with the accused persons were admittedly

strained. However, evidence of these witnesses cannot be

rejected or viewed with suspicion simply for the reason that they

are related to the deceased and the relations between the

complainant party and the accused party were not cordial, as was

the submission of Mr. D.C.Mathur, learned senior counsel for the

appellants. Testimony of eye-witnesses cannot be discarded on

the ground that they were related to the deceased and previously

there was some dispute between the accused and the witnesses

or the victim of the crime. The evidence of such witnesses, of

course, is required to be scrutinized with more caution and care.

So, we have very carefully and cautiously scrutinized the

evidence of the four eye witnesses. As far as the statements of

these four witnesses in their respective examination-in-chief are

concerned, all of them have given a consistent version of the

incident and fully corroborate each other on all material

particulars. In their cross-examination no contradictions on any

material aspect of the prosecution case with reference to their

statements before the police could be brought on record which

shows that they have stuck to their version which they had given

to the police after the incident. That fact makes their evidence

trustworthy despite the fact that all of them are related to each

other and to the deceased and their relations with the family of

the accused persons, who are also their close relatives, were

strained. The presence of PWs 1 and 3 is clearly admitted by

accused Jagdish in his statement under Section 313 Cr.P.C. as also

the fact that both of them had come to his shop and then the

deceased had also come following them. This is our impression

about the evidence of the eye-witnesses which has been formed

by us after examining their examinations-in-chief and cross-

examination. Now we shall examine their evidence through the

eyes of the counsel for the accused persons who had seen certain

infirmities in their testimonies and the prosecution case in

general and then come to the final conclusion whether those

infirmities make any dent in our impression about the prosecution

case or not.

12. Referring to the above extracted portions from the

evidence of the eye witnesses Mr. D.C. Mathur, learned senior

counsel for the appellants, had contended that there is no doubt

that all the eye witnesses had deposed that the three accused

persons had participated in the occurrence leading to the death

of Gobind and injuries to PW-1 Murari Lal but when other

evidence adduced during the trial, which has not been noticed by

the trial Judge at all, is also examined carefully the evidence of all

the eye witnesses would definitely appear to be highly

vulnerable and it would become apparent that they had really not

witnessed the incident at all. Mr. Mathur‟s contention put in the

forefront was that the entire prosecution story becomes false

inasmuch as the prosecution case was that place of crime was the

verandah of shop no.2649, which was the shop of the father of the

deceased, and that was shown to be place of incident not only in

the charge but also in the rough site plan of the place of incident,

Ex.PW-18/A, prepared by the investigating officer as also in the

scaled site plan Ex.PW-9/A prepared by the draftsman, both of

which were prepared on the pointing out of the eye-witnesses.

Even in the ruqqa Ex.PW-4/A the place of incident shown was

verandah of shop no.2649 and as per the prosecution case blood

was also found in the verandah of the shop of the father of the

deceased and not inside or outside the shop of accused Jagdish.

However, as per the version of PW-1 Murari Lal given in Court the

incident had taken place at the shop of accused Jagdish, which

was shop no.2666, where he had gone alongwith his wife PW-2

Saroj Bala to ask Jagdish as to why he used to abuse ladies of

his(PW‟s) family. Thus, argued Mr. Mathur, the prosecution has

shifted the place of occurrence and has also suppressed the

genesis of the occurrence and that fact makes the entire

prosecution case highly doubtful and probabalises the defence

version that in fact accused Jagdish was dragged by Murari Lal

and the deceased from his shop upto the verandah of the shop of

the father of the deceased and in that process someone from the

crowd, which had collected at the spot, might have caused

injuries to PW-1 and the deceased. In support of the submission

that the prosecution case becomes doubtful because of the

prosecution having changed the place of occurrence during the

trial, reliance was also placed on two judgments of the Supreme

Court in "Balwan Singh vs State of Haryana": (2005) SCC 245

and "Buta Singh vs State of Punjab": AIR 1991 SC 1316. One

judgment of a Division Bench of this Court in "Narain Singh vs

State": 66(1997) Delhi Law Times 177 was also cited in support

of the submission regarding the effect of change of place of

occurrence and that the scaled site plan prepared by a draftsman

is admissible in evidence.

13. We are afraid, this argument carries no weight and cannot

be accepted at all. The submission is in the teeth of the well

settled legal position that if evidence of any prosecution witness

is to be demolished because of his having given one version to

the police and another in Court then that can be done only by

confronting that witness with his statement to the police and

inviting his explanation for the discrepancies/contradictions

between the two versions. In the present case, none of the eye

witnesses was cross-examined with reference to any of the two

site plans referred to above, both of which were prepared by

policemen during the course of investigation on the basis of

information given by the eye-witnesses. It was not even elicited

from the eye witnesses whether they had pointed out the place of

occurrence to the draftsman. So, none of the plans available on

record can be looked into for any purpose much less for the

purpose of discrediting the eye-witnesses. As far as the ruqqa is

concerned, the same was prepared by the investigating officer

(PW-13 SI Shiv Kumar) and even he was not cross-examined

regarding the place of occurrence as recorded by him in his

ruqqa. In the Supreme Court decisions cited on behalf of the

appellants as also in the decision of this Court, the Court had

found from the evidence that the place of occurrence had been

changed and so the prosecution case was viewed with suspicion

but since in the case in hand we have not found any such thing,

those judgments are of no help to the appellants. So, the

prosecution case cannot be discredited for the reason urged by

Mr. Mathur that the place of occurrence has been shifted during

the course of the trial.

14. Mr. Mathur had also contended that the prosecution had

also suppressed the genesis of the incident and that was evident

from the fact that it was the plea of accused Jagdish that he was,

in fact, dragged from his shop by PW-1 Murari Lal upto the shop

of his(PW-1‟s) father and that version of Jagdish gets confirmed

from the statement of the investigating officer(PW-18) who in his

cross-examination had admitted that he had found injuries on the

person of accused Jagdish when he had arrested him and had also

got him medically examined. Mr. Mathur submitted that the

police had got accused Jagdish medically examined but it had

withheld his MLC and the prosecution has also not explained the

presence of injuries on the person of accused Jagdish which

showed that the eye-witnesses had suppressed true facts. This

argument also, like the previous one, is bereft of merit and is

liable to be rejected. There is no doubt that the investigating

officer PW-18 had admitted in cross-examination that in the case

diary there was reference to some injuries of Jagdish and his

medical examination was conducted, but the accused cannot get

any benefit from that admission. Accused Jagdish has not claimed

that during the incident he had received any injury, much less a

serious one, at the hands of the deceased and his brother Murari

Lal. So, there was no occasion for the prosecution to have

explained the injuries on the person of accused Jagdish. As far as

his plea that he was dragged from his shop upto the shop of the

complainant party is concerned he has not even attempted to

prove the same even though he has claimed that when he was

being dragged crowd had collected at the spot but nobody has

been examined as a defence witness. So, the prosecution case

cannot be viewed with suspicion because of non-explanation of

the injuries on the person of accused Jagdish, as appear to have

been mentioned in the case diary and which, even if the plea of

dragging of the accused is accepted, were unlikely to be serious

injuries.

15. Another submission of Mr. Mathur was that in this case the

FIR had been ante-timed and that was clear from the fact that in

the Crime Team report (Ex. PW-17/DB) the number of the FIR was

not mentioned which would have been so mentioned in that

report, which was prepared between 5 and 6.30 p.m., if the FIR

had actually been registered at 4.50 p.m. as is recorded in the

FIR. Challenging the truthfulness of the four eye witnesses

examined by the prosecution, Mr. Mathur contended that none of

them can be said to be an eye witness of the incident because the

in-charge of the Crime Team in his report had advised the

investigating officer to record the statement of the injured and

also to look for eye witnesses of the incident and since the crime

team report was prepared between 5 and 6.30 p.m. this kind of

advise to the prosecution would not have been given at that time

if actually the statement of the injured eye witness Murari Lal had

already been recorded. This submission of the learned senior

counsel is also without any substance. There is no doubt that in

the crime team report Ex.PW-17/DB marked as Ex.PW-17/DB (this

document in fact is Ex.PW-18/DB and by mistake it appears to

have been written as Ex.PW-17/DB by the trial Judge) where it is

mentioned that the crime team had examined the place of

incident between 5 p.m. to 6.30 p.m. and as per the prosecution

case the FIR had been registered at the police station at about

4.50 p.m. but FIR number was not mentioned in the crime team

report. It is also correct that in the crime team report the in-

charge of the crime team had advised the investigating officer to

record the statement of the injured and also to look for the eye

witnesses. However, from the absence of the number of FIR in the

crime team report and the piece of advice given for the

investigating officer it cannot be said that neither the FIR had

been registered nor the statement of the injured Murari Lal had

been recorded by the time crime team report was prepared. The

police inspector who had prepared the crime team report is not a

prosecution witness and it was not elicited from any of the two

investigating officers, namely, PW-13 Shiv Kumar and PW-18

Inspector G.L. Mehta, as to whether they had any talk with the in-

charge of the crime team and whether they had informed him

about the registration of the FIR and recording of the statement of

the injured and whether the crime team report had been handed

over to them by the in-charge of the crime team at the spot.

16. Mr. Mathur also attacked the trustworthiness of the

prosecution case and particularly the version of the incident

given by the eye-witnesses on the ground that in the inquest

report Ex. PW-18/B also, which was prepared on 26-8-91, the

names of the assailants had not been mentioned and even in the

investigating officer‟s letter to the autopsy surgeon requesting for

post-mortem the names of the perpetrators of the crime were not

given. In support of the argument, absence of the names of the

assailants in the inquest report makes a prosecution case

doubtful. Learned senior counsel cited one judgment of the

Supreme Court in "Balak Singh vs State of Punjab": AIR 1975 SC 1962

and a Division Bench judgment of this Court in "Balwant Singh vs.

the State": 1976 C.L.R. (Delhi) 41. These decisions do not advance

the case of the appellants. In those cases, names of the some of

the accused were mentioned and during the trial others were also

sought to be roped in. That fact was taken into consideration

alongwith other flaws in the prosecution case for doubting the

prosecution case. However, it was not held that whenever the

names of the accused, which are known by the time inquest

report is prepared, are not mentioned in the inquest report the

eye-witnesses naming the accused would be considered to be

unreliable witnesses. The Supreme Court has taken the view on

this aspect in "Mahendra Rai vs. Mithlesh Rai and others": (1997) 10

SCC 605 and it has held that the names of the assailants are not

required to be mentioned in the inquest report and the absence

of the names of the assailants in the inquest report would have no

impact on the trustworthiness of the prosecution case. The

relevant paras from the judgment are being re-produced below:-

"9. Coming to the evidence of eye witnesses Jagdish Rai, PW 7 Jageshwar Rai, PW 8 it may be pointed out that their evidence has been rejected by the High Court merely on the ground of discrepancy in the timings of reparation of the inquest report Ext. 9 and the absence of the names of the assailants in the same. However, we find that the High Court committed a patent error in appreciating the same. It may be pointed out that inquest reports are prepared as envisaged in Section 174(1) Cr.P.C. Section 174 Cr.P.C. contemplates the preparation of an inquest report by the police officer in the presence of two or more respectable inhabitants of the neighbourhood and draw up a report of apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body stating in what manner or by what weapon or instrument (if any) such marks appeared to have been inflicted. For ready reference Sub-section (1) of Section 174 Cr.P.C. is reproduced hereunder:

174. Police to enquire and report on suicide, etc. (1) When the officer-in-charge of a police station or some other police officer specially empowered by the State Government in that behalf received information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the district or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitant of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appears to have been inflicted.

A perusal of Section 174(1) would go to show that it does not require anywhere to mention the names of assailants. It was, therefore, neither incumbent upon the police officer Kailash Prasad, PW 13, who prepared the inquest report, to mention the names of the assailants nor it was necessary for the eye witnesses Jagdish Rai and Jageshwar Rai who are the witnesses to the said inquest, to insist the mention of the names of the assailants in the said inquest report ........."

17. Another ground of challenge to the truthfulness of the

evidence of the eye-witnesses raised by Mr. Mathur was that the

evidence of the eye-witnesses does not find support from medical

evidence as far as the injuries allegedly caused by the accused

Rajinder Kumar and Dharambir to the deceased are concerned.

There is no force in this submission also. PW-2 Anil Kumar had

clearly deposed that there were three stab injuries caused to

Gobind, two with knife and one with scissors. The medical

evidence, which has already been noted by us fully supports the

evidence of this witness. Mr. Mathur had contended that the

autopsy surgeon could not confirm whether the injuries were

caused with one weapon or more than one weapons and that fact

also casts doubt about the truthfulness of the evidence of the eye-

witnesses and it becomes doubtful whether accused Rajinder

Kumar and Dharambir had both caused injuries to the deceased

or not and that doubt becomes strong since in the Brief Facts, Ex.

PW-18/C, prepared by the investigating officer for being

forwarded to the autopsy surgeon alongwith his application for

conducting post-mortem it had been mentioned that Dharambir

had caused injuries on the person of the deceased with knife and

regarding accused Rajinder Kumar it was not mentioned that he

had used scissors in the incident. Mr. Mathur‟s submission was

that Brief Facts must have been prepared on the basis of

statements of the eye-witnesses only and that shows that accused

Rajinder Kumar had not been assigned the role of causing injuries

with a scissors by that time and later on it might have been

decided to introduce the use of scissors by Rajinder Kumar. There

is no doubt that in cross-examination PW-12 Dr. Baruah had

stated that he could not say so but that does not rule out that

injuries were not caused to the deceased with a knife as well as

with scissors, as deposed by all the eye-witnesses. As far as the

absence of the use of scissors by accused Rajinder Kumar in the

Brief Facts prepared by the investigating officer is concerned,

that document cannot be used to contradict the eye-witnesses‟

version of the incident since the same is not a substantive piece of

evidence and neither the eye-witnesses nor the investigating

officer were asked anything about that document in cross-

examination to explain the absence of use of scissors by accused

Rajinder Kumar.

18. Mr. Mathur, in the end, also raised a grievance regarding

the casual way of recording of the statements of the accused in

this case by the trial Judge and submitted that that casual

approach has definitely prejudiced the accused persons. In

support of this submission the learned counsel cited one

judgment of the Supreme Court in " Asraf Ali vs State of Assam":

2008(3) Crimes 112. There is no doubt that in this case the trial

Judge who had recorded the statements of the three accused

persons under Section 313 Cr.P.C. had been grossly negligent in

recording the statements and in fact it also appears that the job of

recording of the statements was assigned to the stenographer and

that is evident from the fact that certain questions put to the three

accused were simply copied and even answers to those questions

were copied verbatim even though the questions related to a

particular accused only. We view such a casual approach on the

part of the trial Judge quite seriously but nothing further is being

said on this aspect since we were informed during the course of

the hearing that the concerned Judge was no more in service. As

far as accused persons are concerned they, however, do not

stand to benefit from this lapse on the part of the trial Judge and

the decision of the Supreme Court cited by Mr. Mathur also does

not entitle them to acquittal on this ground since in our view no

prejudice appears to have been caused to them and this is what

was held by the Supreme Court that any irregularity in the

recording of statement of an accused shall not vitiate the trial

unless prejudice is shown to have been caused to the accused or

it has resulted in miscarriage of justice.

19. These were the infirmities highlighted by the learned senior

counsel for the appellants in the prosecution case. However, all

these infirmities have failed to make any dent in the prosecution

case. Having thus found that the deceased died a homicidal death

and that the eye-witnesses examined by the prosecution have

given a trustworthy and reliable version of the incident we have

no hesitation in affirming the findings of the learned trial Judge

that the incident did take place in the manner deposed to by the

four eye-witnesses. With this conclusion of ours the escape route

for the two accused brothers, namely, Rajinder Kumar and

Dharambir, at least, stands closed completely. Whatever role

they performed in the incident, as deposed to by the eye-

witnesses, regarding the assault on the deceased and PW-1, was

clearly in furtherance of their common intention and that intention

was to finish off the deceased and his brother PW-1 Murari Lal.

They succeeded in killing the deceased Gobind but their attempt

on the life of PW-1 Murari Lal failed. He was fortunate to survive

despite the fact that he had sustained injuries which were found

by the doctor (PW-17) to be dangerous for his life could be only

to kill him also. The Supreme Court in "Parsuram Pandey vs

State of Bihar":(2004) 13 SCC189 held that "For the purpose of

Section 307 IPC what is material is the intention or the knowledge

and not the consequence of the actual act done for the purpose of

carrying out the intention......... The intention or knowledge of

the accused must be such as is necessary to constitute murder." It

was also observed by the Supreme Court in "R.Parkash vs State of

Karnataka": AIR 2004 SC 1812, that the nature of injury actually

caused may often give considerable assistance in coming to a

finding as to the intention of the accused. So, the intention of

accused Dharambir in causing dangerous injury on the person of

PW-1 Murari Lal with a knife could be only to kill him also.

Therefore, the conviction of accused-appellants Rajinder Kumar

and Dharambir for the offences punishable under Sections 302

and 307 IPC read with Section 34 IPC calls for no interference in

this appeal.

20. Mr. Mathur had also contended that as far as accused

Jagdish is concerned he cannot be convicted in any event either

for the murder of the deceased Gobind or the attempted murder

of PW-1 Murari Lal with the aid of Section 34 IPC since from the

evidence of the eye-witnesses it is not at all made out that he had

the shared common intention with his two sons to commit the

offences for which they have been found guilty. It was contended

that only one eye-witness, PW-2, had claimed that when he had

come forward to rescue Gobind accused Jagdish had made an

exhortation using filthy words (which we have already noted

while narrating his version of the incident) and that exhortation

was also only „maaro......‟ which did not mean „to kill‟ anyone. It

was also submitted that this accused had not called his sons to

come outside their shop to kill the deceased and his brother. His

sons had come out on their own and had allegedly assaulted the

deceased and PW-1. No other eye-witnesses including the

injured Murari Lal had said that Jagdish had exhorted his sons at

all. So, Jagdish cannot be said to have shared any intention with

his sons. Reliance in this regard was placed on one judgment of

the Supreme Court in "Suresh & Anr. Vs State of U.P.": AIR 2001 SC

1344 wherein against one of the convicted accused, out of the

three eye-witnesses of the incident only one had ascribed the role

of catching hold of the deceased and exhorting co-accused to kill

everybody . The Supreme Court did not think it proper to invoke

Section 34 IPC in respect of that accused by accepting the version

of one eye-witness and acquitted that accused. One judgment of a

Division Bench of this Court in "Raj Kumar vs State": 89(2001) DLT 237

was also cited in which case also against one of the accused the

role ascribed was of catching hold of the victim and exhorting

other co-accused by saying "Dekhta kiya hai maar saleko". The

Division Bench had held that the exhortation "Maar saleko" did

not mean that co-accused was exhorted to kill the deceased but

only to teach a lesson to the rascal (the deceased). In this

submission of the learned senior counsel, however, we find a

great deal of strength. The only role assigned to accused Jagdish

and that, too, by only one of the four eye-witnesses namely, PW-2

Anil Kumar is that he was having a danda and when he (PW-2) had

rushed forward to save the deceased he had uttered filthy words

while exhorting (his sons) "maaro......". However, no other

witness stated so. In any case, it cannot be said that Jagdish had,

by using the word „maaro‟, intended to command his sons to kill

the deceased and his brother. As per the prosecution case, he

had not called his sons to come out from their shop. They came on

their own and first assaulted Murari Lal and then the deceased

when he rushed forward to rescue his brother. There does not

appear to be any pre-concerted plan amongst the father and sons

to assault the deceased and his brother. As per the prosecution

case PW-1 had come to the shop of accused Jagdish and the

accused had not gone to the shop of PW-1. Thus, in our view

conviction of accused Jagdish with the aid of Section 34 IPC for

the offences under Sections 302 as well as 307 IPC cannot be

sustained.

21. As a result of the fore-going conclusions arrived at by us,

this appeal stands dismissed as far as appellants Dharambir and

Rajinder Kumar are concerned and their convictions and the

sentences awarded to them by the trial Court under Sections

302/307/34 IPC are affirmed. The sentences of imprisonment of

these two accused-appellants were suspended during the

pendency of the appeal and now that their appeals stand

dismissed their bail bonds stand cancelled and they are directed

to be taken into custody forthwith to serve out the remaining part

of the sentences awarded to them. However, the impugned

judgment in respect of appellant Jagdish is set aside and he

stands acquitted of all the charges for which he was tried,

convicted and sentenced. He was also released on bail during the

pendency of the appeal and now with his acquittal his bail bonds

stand discharged.

P.K.BHASIN,J

BADAR DURREZ AHMED,J

November 06, 2009