Sanjay Kumar vs State
2013 Latest Caselaw 2333 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  CRL.A. 382/2010


SANJAY KUMAR                                ..... Appellants
                            Through:   Mr. Ajay Verma, Advocate.

                   versus

STATE                                       ..... Respondent
                            Through:   Ms. Ritu Gauba, APP.


%                           Date of Decision : May 20, 2013

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE SUNITA GUPTA

                            JUDGMENT

: REVA KHETRAPAL, J.

1. On 31st August, 2004, at about 7.30 p.m., a young girl barely

20 years of age named Suman was done to death in her own jhuggi,

being jhuggi no.B-181, Sanjay Colony, Okhla Phase-II, New Delhi.

The author of the crime was the accused Sanjay, who, as per the

prosecution‟s case, stabbed the deceased Suman four times. The first

two blows were administered on the neck of the deceased while the

other two blows were received by the deceased on her arm which she

held up to shield herself. The reason which impelled the accused

Sanjay, who happened to be the cousin brother of the deceased, to do

away with the deceased is stated to be the infamy brought by the

deceased to the family on account of her illicit relationship with some

boy.

2. The case of the prosecution as unfolded in the rukka recorded

by PW24 SI Sandeep Ghai on the statement of the brother of the

deceased PW1 Rajesh is as follows. On 31st August, 2004 at about

7.30 p.m. Rajesh, the brother of the deceased and Vinod, the cousin

brother of the deceased were sitting on the roof of the house of Rajesh

and were talking to each other regarding going to their native village

as their grandfather had died at Nasirabad, when they heard cries of

the deceased from the first floor "Bhaiya Bachao - Bhaiya Bachao".

PW1 Rajesh ran to the first floor from the iron staircase and found

that his cousin brother (tau‟s son), namely, Sanjay, who was residing

in the adjoining jhuggi, was giving a knife blow to his sister Suman

on her neck while shouting "Tu mere mana karne ke bavjud us ladke

se milne se baaz nahi aa rahi hai aur hamare khandaan ki naak katva

rahi hai. Tere bhai to kuch nahi kar rahe - mein hi kuch karta hoon

aur tera kam-tamam kar deta hoon." While saying so, he gave the

second knife blow to the deceased. The deceased fell to the ground

while shielding herself with her left arm. PW1 Rajesh on finding that

his sister had fallen pounced upon Sanjay in an attempt to disarm

him, whereupon Sanjay gave a blow on the neck of PW1 Rajesh and

his shoulder saying: "Tum namard apni bahan ko nahi rok sakte ab

saare kam muje hi karne padenge". After saying so, Sanjay ran

down the iron staircase and while doing so was accosted by PW2

Rajkumar, the younger brother of the deceased, who finding his

brother and sister drenched in blood gave chase. On the hue and cry

created by PW2 Rajkumar, other persons of the colony joined in the

chase resulting in the apprehension of Sanjay outside the gali. The

crowd then administered beatings to the accused Sanjay. In the

meanwhile, with the help of neighbours PW1 Rajesh alongwith PW2

Rajkumar took the deceased to the road outside the gali from where

he gave a call to the PCR at No.100 and boarded a three-wheeler

scooter which was passing by. The deceased was taken to AIIMS

Hospital where the doctor declared her brought dead.

3. The aforesaid rukka (Ex.PW24/A), as noted above, was

recorded by SI Sandeep Ghai (PW24) at the hospital and dispatched

through Constable Gulab Singh (PW16) to Police Station Okhla at

about 11.10 p.m., who got registered case FIR No.608/04 (Ex.PW

24/A) and returned back to the spot at about 1.20 a.m.

4. During investigation, SI Sandeep Ghai (PW24) prepared site

plan (Ex.PW24/B), lifted earth control, blood stained earth, blood in

gauze, pillow and hairband from the spot and seized the same vide

memo Ex.PW1/D, whereafter he returned to the police station and

deposited the case property in the malkhana. Thereafter, he again

went to AIIMS Hospital where accused Sanjay present in the Court,

who had also been taken to the hospital by the PCR, had been

discharged. He was brought to the police post and formally arrested

vide arrest memo Ex.PW16/F and his personal search conducted vide

memo Ex.PW16/G. The accused disclosed that he had committed the

murder of Suman because she was having an affair with some boy

and her brothers were not doing anything in this regard. He further

disclosed that he had thrown the weapon of offence, viz., the knife on

the roof of the nearby jhuggi, being jhuggi No.B-182. On the

aforesaid disclosure made by the accused Sanjay, which was recorded

vide Ex.PW 16/H, SI Sandeep Ghai led the police party to jhuggi

No.B-182 where he directed Constable Gulab Singh (PW16) to climb

on the roof of the jhuggi and search for the knife. Constable Gulab

Singh thereupon recovered the blood stained knife from the roof of

the aforesaid jhuggi. Sketch of the knife was prepared (Ex.PW16/B)

and the knife seized vide memo Ex.PW16/C and converted into a

pullanda. The blood stained clothes of accused Sanjay were got

changed and sealed in a parcel, which was seized vide memo

Ex.PW16/D. The blood sample of the accused was taken in the

forensic department which was seized vide memo Ex.PW16/E. All

the incriminating articles were deposited in the malkhana.

5. On SI Sandeep Ghai again reaching the hospital, Sub Inspector

Manoj and Constable Chanderpal got conducted the postmortem on

the dead body of the deceased Suman. Constable Chanderpal (PW14)

handed over to SI Sandeep Ghai (PW24) the clothes, vaginal swab

and blood sample of the deceased Suman, which too were seized and

deposited in the malkhana. Subsequently, on 27th September, 2007,

the weapon of offence, viz., the knife was sent to the forensic

department for medical opinion. On 30th September, 2004, the

Exhibits were sent for the opinion of the serologist to the FSL

Laboratory.

6. After completion of the investigation, chargesheet was filed on

the basis whereof the accused was charged for the offences

punishable under Sections 302/307 IPC, to which the accused pleaded

not guilty and claimed trial.

7. In the course of trial, the prosecution examined 24 witnesses.

No defence evidence was adduced on behalf of the accused.

8. It is proposed to first deal with the ocular, medical and forensic

evidence on record in that order before adverting to the contention of

the parties.

9. As regards the ocular testimony, the crux of the testimony of

PW1, Rajesh was that he was an eye witness to the assault on his

deceased sister with knife by the accused Sanjay. He reiterated what

he had stated before the Investigating Officer, as recorded in the

rukka, except that he stated that after being assaulted by the accused

with knife on his neck he called Vinod, the brother of the deceased,

who came downstairs and took control of him (Rajesh). Accused ran

away from there. He (Rajesh) had snatched the knife from the hands

of the accused. With regard to the knife, he further stated that he had

given the knife to the police at that time itself. On being cross-

examined by the learned Additional Public Prosecutor on this aspect,

he reiterated that he had snatched the knife from the hand of the

accused Sanjay and had handed over the same to the police and

denied that he did not remember this fact correctly. We have noted

this fact for the reason that learned counsel for the accused has laid

great stress on this aspect of the matter to contend that the whole

story of the prosecution with regard to the recovery of the knife from

the roof of the adjoining jhuggi is a false one, but more about this at

the relevant time.

10. The second eye witness who claims to have witnessed the

commission of the crime is PW2 Rajkumar, the younger brother of

the deceased. In his testimony, PW2 Rajkumar stated that at about

7.30 p.m., he was returning to his house from the house of his friend

who resided in the same locality. When he reached near his house, he

heard the scream of his brother Rajesh which was coming from their

house. On hearing the same, he rushed to the room from where the

scream had emanated. On reaching the staircase, he saw accused

Sanjay present in the Court getting down from the stairs with a blood

stained knife in his hand. He tried to catch the accused but the

accused pushed him and ran away. He raised alarm. On hearing his

alarm, the accused was apprehended by public persons of the locality.

When he entered into the room, he saw his sister Suman lying on the

floor blood soaked and blood was oozing from the left side of the

neck of his brother Rajesh. He was told by his brother that accused

Sanjay had stabbed Suman and himself. Thereafter, he alongwith his

brother and other public persons took his sister to AIIMS in a scooter,

where she was declared "brought dead" and treatment was provided

to his brother.

11. The third witness examined by the prosecution is PW3

Panwati, the mother of the deceased, who though stated in her

examination-in-chief that her daughter Suman was killed by Sanjay,

retracted from her statement under Section 161 Cr.P.C. by stating that

she did not know the cause of the murder. This witness although

extensively cross-examined by the learned Additional Public

Prosecutor denied that she was aware of the reason wherefor her

daughter had been murdered by accused Sanjay. On being cross-

examined by learned counsel for the accused, she stated that her son

had told her that accused Sanjay had killed her daughter, but she had

not witnessed the incident with her own eyes.

12. A look now at the medical evidence on record to see if the

same is in line with the ocular evidence. As per the MLC Ex.PW9/B

of the accused Sanjay Kumar prepared by Dr. Kiran and proved on

record by PW9 Dr. Prathmesh Jain, there was a history of assault on

the accused at around 8.00 p.m. by the public. The patient had

contusion and swelling on the right side of the face involving the

right, upper and lower eye lid, swelling over the posterior aspect of

the skull, tenderness and right ear lobe swelling over the skull on the

posterior aspect, tenderness and laceration over the left eyebrow

about 2 cms. in length, tenderness over left ear lobe plus swelling.

We may usefully note at this juncture that the aforesaid injuries could

not have been caused by a knife and appear to corroborate the

prosecution case that the accused was administered beatings by the

public on being caught after a chase.

13. The MLC of Rajkumar Ex.PW9/A, who was pushed by the

accused, also appears to be consistent with the prosecution case, in

that it shows that there was pain and swelling in the right knee of the

patient; the injury was simple blunt. PW7 Dr. Kamlesh Kumar also

proved on record X-ray reports of both the accused Sanjay Kumar

and PW2 Rajkumar, as Ex.PW7/A and Ex.PW7/B prepared by Dr.

Rohini Gupta, which showed that no fracture was seen on the

aforesaid persons.

14. The MLC of the injured witness PW1 Rajesh Kumar

Ex.PW8/A was prepared by Dr. Vikas and proved on record by PW8

Dr.Ram Karan Chaudhary, CMO, AIIMS. As per this MLC, there

was a sharp cut injury on the left side of the neck and one sharp cut

injury 3 cms. on left scapular region. This too appears to be in line

with the deposition of PW1 Rajesh Kumar.

15. The MLC of the deceased Suman Ex.PW6/A was proved on

record by the record clerk of AIIMS Hospital and shows that she was

brought dead to the hospital by her brother Rajesh Kumar.

16. Adverting to the post mortem of the deceased, the postmortem

was conducted on 1.9.2004 between 11.55 a.m. and 12.40 p.m.

Detailed postmortem report has been proved in the evidence by PW19

Dr. Arvind Kumar as Ex.PW19/B. Apart from proving the

postmortem report, the said witness also deposed that he had taken

the blood sample of accused Sanjay, which was seized vide seizure

memo Ex.PW19/A and handed over to the IO. He further deposed

that on 27.9.2004, on the request of SI Sandeep Ghai for subsequent

opinion in the matter, he had examined the knife in question and in

his subsequent opinion rendered on 27.9.2004 vide Ex.PW19/C

opined that injury Nos.1, 2, 3 and 4 mentioned in the postmortem

report could be caused by the weapon produced from the pullanda,

which was knife. He had also prepared a sketch of the said knife as

part of his report. This fact is being mentioned for the reason that

much is sought to be made by the Appellant‟s counsel about the fact

that the dimensions of the knife in the said sketch varied from the

dimensions of the knife prepared by the Investigating Officer and it is

proposed to advert to this aspect later on. Suffice it to be noted at this

juncture that the postmortem report and the subsequent opinion

rendered by the very same doctor who conducted the postmortem

corroborate the version of the prosecution with regard to the weapon

of offence used for the commission of the crime, the number of

injuries inflicted by the accused and the manner in which the said

injuries were inflicted on the neck and hand of the deceased.

17. As per the postmortem report, the cause of death of deceased

Suman was opined as haemorrhagic shock consequent upon injury

No.1 mentioned in the postmortem report which is a stab wound of

size 2 cms. vertically and 0.7 cms. horizontally in lower neck, 10 cms.

below mentum, 2 cms. above sternal notch, directed backward,

downward and rightward penetrating through the lower end of

sternum, deep to right pleural cavity entering upper pole of right lung

0.5 cms. deep, lower end of sternum showing extravassation of blood,

left margin of the wound showing subcutaneous fat exposed, upper

end was round and lower having tailing subclavian artery showing

tear. Injury No.2 was also on the left side of upper part of the neck.

Injury No.3 was stab wound over ulnar side of dorsal aspect on left

forearm and injury No.4 was also stab wound just below injury No.3.

PW19 Dr. Arvind Kumar deposed that all the injuries except injury

No.5 which was a shoulder injury were caused by sharp edged

weapon.

18. The forensic report was proved on record by PW20 Anita

Chhari, Senior Scientific Assistant, Biology Division, FSL, Delhi,

who deposed that on 30.9.2004 she had received 11 pullandas duly

sealed and had examined the contents thereof serologically. She

proved on record her report as Ex.PW20/A and the serological report

as Ex.PW20/B. A conjoint reading of the said reports shows that

blood was detected on the knife (human blood), the clothes of the

deceased (shirt, salwar, etc.), gauze cloth piece containing the blood

sample of the deceased, gauze cloth piece containing the blood

sample of the accused (human blood), the clothes of the accused viz.

shirt and pants, cotton wool swab having brown stains, blood stained

earth piece (human blood) and pillow with cover (human blood). The

gauze cloth piece containing the blood sample of the accused was

detected to be of „O‟ Group; the knife was detected to contain blood

of „A‟ Group; the pants of the accused were also found to contain

blood of „A‟ Group. Thus, the blood on the knife and the pants of the

accused was of „A‟ Group while the gauze cloth piece with the blood

of the accused was of „O‟ Group. The shirt of the deceased, the blood

stained cemented pieces and the pillow with cover were detected to

have human blood but the blood group could not be ascertained.

19. There is also on record the report of the Senior Scientific

Officer, FSL, Delhi, who was examined as PW17 to prove his report

Ex.PW17/A. As per the FSL report, both the parcels containing

"Blood stained earth piece" and "Piece of floor as earth control" were

examined and were found possessing similar characteristics.

20. Adverting now to the contentions of the counsel for the

Appellant, Mr. Ajay Verma, appearing for the Appellant assailed the

case of the prosecution on the following grounds. He contended that

though the case of the prosecution was that PW1 Rajesh and the

brother of the Appellant, namely, Vinod were present together on the

roof of the house of PW1 Rajesh and were talking to each other at the

time of the commission of the crime, Vinod has not been cited by the

prosecution as a witness nor even examined at the time of

investigation. He was a crucial witness and his non-examination casts

doubt on the prosecution story. He further contended that Constable

Devi Sahai, who is stated to have accompanied SI Sandeep Ghai

(PW24) and ASI Pritam Singh (PW5) to the spot on receipt of a

wireless message that one girl had been stabbed in Sanjay Colony,

Okhla Phase-II, has also not been examined by the prosecution. Non

examination of material witnesses to corroborate the case of the

prosecution must prove fatal to the prosecution‟s case.

21. Learned counsel further contended that the prosecution‟s case

with regard to the recovery of the knife was a false and concocted one

as is evident from the discrepancy in the testimony of PW1 Rajesh

Kumar and the statement of the said witness Ex.PW1/A as recorded

in the rukka (Ex.PW24/A). While in his statement Ex.PW1/A, PW1

Rajesh Kumar had clearly stated that after the accused had assaulted

him (PW1) on his neck and shoulder the accused fled the spot from

the iron staircase, in his testimony recorded in Court PW1 deposed

that he had snatched the knife from the hand of the accused and had

given the knife to the police at that time itself. Learned counsel

further pointed out that as per the remaining prosecution witnesses

who were police witnesses the knife was recovered pursuant to the

disclosure statement of the accused from the roof of the nearby jhuggi

bearing No.B-182, Sanjay Colony, Okhla Phase-II. Learned counsel

also contended that the sketch of the knife allegedly recovered from

the roof of the jhuggi No.B-182 prepared by the Investigating Officer

(Ex.PW16/B) and the sketch of the knife prepared by PW19 Dr.

Arvind Kumar (Ex.PW19/C) when placed in juxtaposition with each

other showed that both the knives were different knives. In other

words, the knife allegedly recovered from the accused and the knife

on which the opinion of the doctor was sought were dissimilar to each

other. This was so both in respect of the dimensions of the two

knives and the fact that the sketch of the recovered knife Ex.PW16/B

showed that the handle of the said knife was different from the handle

of the knife, sketch whereof was prepared by PW19 Arvind Kumar in

his subsequent opinion Ex.PW19/C.

22. Ms. Ritu Gauba, learned Additional Public Prosecutor fully

supported the prosecution case and sought to contend that the

contentions of the counsel for the accused were wholly untenable and

in any case, were of no avail to the accused.

23. We have carefully gone through the judgment of the trial court

and the evidence on record and are of the considered opinion that the

said judgment deserves to be upheld. In the instant case, the criminal

law machinery was put into motion on the fateful day at about 8.05

p.m., when DD No.27 (Ex.PW22/A) was registered by Head

Constable Bhikamber (PW22) on receipt of information from the

police control room that Suman was stabbed by her brother. The said

DD Ex.PW22/A was handed over to ASI Pritam Singh (PW5). ASI

Pritam Singh has deposed that on that day at about 8.05 p.m., on

receipt of copy of DD No.27, he along with Constable Devi Sahai

reached Sanjay Colony, Okhla Phase-II where he found many persons

gathered and came to know that accused Sanjay had stabbed his

cousin sister Suman and cousin brother Rajesh with knife and both

the injured had been removed to the hospital; accused Sanjay had also

been beaten by public persons and the PCR Van had taken him to

AIIMS. SI Sandeep Ghai also reached the place of occurrence and he

along with Constable Gulab Singh and Constable Devi Sahai went to

AIIMS.

24. A similar version has been given by PW24 SI Sandeep Ghai to

the effect that at about 8.20 p.m. when he was on patrolling duty

along with Constable Gulab Singh near Nathu Sweets, he received a

wireless message that one girl had been stabbed in Sanjay Colony,

Okhla Phase-II. He immediately rushed to the spot where he met ASI

Pritam Singh (PW5) and Constable Devi Sahai. PW5 ASI Pritam

Singh informed him that a girl named Suman and Rajesh had been

shifted to AIIMS hospital and the person who had caused the injuries

to Suman and Rajesh (PW1) had also been taken to AIIMS by the

PCR Van. The statement of PW1 Rajesh was recorded by SI Sandeep

Ghai at the hospital (Ex.PW1/A) and after making his endorsement on

the same he sent Constable Gulab (PW16) to the police station to get

the case registered. PW16 Constable Gulab Singh took the rukka to

the police station and got registered the First Information Report at

11.10 p.m.

25. It is clear from the aforesaid evidence on record that the

accused Sanjay was in the statement of PW1 Rajesh, the real brother

of the deceased, named at the very first instance. The testimony of

PW1 Rajesh who was an injured witness and whose testimony we

have adverted hereinabove is consistent with his statement Ex.PW1/A

on the basis of which First Information Report was registered and we

find the same worthy of credence. Though he was subjected to

extensive cross-examination, nothing could be elicited on record to

detract from his statement in any manner. He was a natural witness

and his presence at the place of incident cannot be doubted. He was

also the real brother of the deceased and he himself had received

injuries and would not allow the real culprit to go scot free.

Reference in this context may be made to the case of Shaukat vs.

State of Uttaranchal, (2010) 5 SCC 68, wherein the Supreme Court

while assessing the credibility of an injured and related witness who

was the real brother of the deceased held that the presence of an

injured witness and that too one who is the real brother of the

deceased at the place of the incident can hardly be doubted for such a

person would not allow the real culprits to get away and involve

innocent persons falsely. In Chikkarangaiah and Others vs. State of

Karnataka, (2009) 17 SCC 497 also, the Supreme Court opined that

the trial court had wrongly rejected the testimony of the injured

witness for there was no reason why an injured witness instead of

giving the name of real assailants would unnecessarily implicate other

people falsely. Thus, both as a related witness and as an injured

witness the testimony of PW1 deserves to be believed, more so as his

testimony in Court is in line with the initial statement made by him

before the police immediately after the occurrence and has also

withstood the litmus test of cross-examination.

26. It also needs to be borne in mind that the testimony of PW1

Rajesh Kumar is buttressed by the testimony of PW2 Rajkumar who

was also the real brother of the deceased and who testified to the fact

that he had seen the accused running away with the blood stained

knife in his hand, had tried to catch hold of the accused but had been

pushed away and upon entering the room had seen his sister lying on

the floor blood soaked and blood was oozing out from the left side of

the neck of his brother Rajesh.

27. Great emphasis has been laid by learned counsel for the

accused on the fact that PW4 Smt. Panwati, mother of the deceased

did not support the prosecution case. But it cannot be lost sight of

that she in fact was not a witness to the crime itself and clearly stated

in her examination-in-chief that at the time of the incident she was not

present at her house. PW4 Panwati however emphatically stated that

her daughter Suman was killed by Sanjay. On being cross-examined

by the counsel for the accused she clarified that her son had told her

that Sanjay had killed her daughter though she did not see the incident

with her own eyes. Her testimony in our opinion has a ring of truth

and to label her as a hostile witness would be, in our opinion, be a

travesty of justice. True, she in her testimony is not forthcoming as

regards the motive for the crime for which undoubtedly she must be

having her own reasons, one of which according to us could be to

provide a cover to the so-called family honour and name. Her

testimony, therefore, does not help the accused in any manner. Even

otherwise, it is a well settled proposition of law that motive for the

commission of a crime pales into insignificance where there is clear

and cogent ocular evidence with regard to the commission of the

crime and the eye witness account of the manner in which the offence

was committed is discerned by the Court to be otherwise credit-

worthy de hors motive.

28. Great stress has also been laid by learned counsel for the

accused on the fact that Vinod though as per the case of the

prosecution was present on the roof of the house at the time of the

commission of the crime has not been examined by the prosecution.

A look at the chargesheet, however, shows that PW Vinod was cited

by the prosecution at serial No.4, but his name was subsequently

scored off by the learned Additional Public Prosecutor, presumably

for the reason that he being the real brother of the accused in all

probability would not have supported the case of the prosecution.

The defence, in our opinion, could have marshalled his evidence to

shatter the prosecution case. The fact that the accused did not choose

to call his real brother in the witness-box to save himself from

shackles in our opinion speaks volumes.

29. For all the aforesaid reasons, we are inclined to give credence

to the testimony of the two injured prosecution witnesses whose

testimony is also in consonance with the medical evidence on record,

as noted by us hereinabove. The manner of attack on both the

deceased Suman and PW1 Rajesh was on the frontal portion of the

neck. The defence would have us believe that it was PW1 Rajesh

who had committed the crime and the accused had gone to the rescue

of the deceased. If that be so, it stands to reason that the accused

would have sustained some injury with the knife, but the medical

evidence on record shows that he sustained no injury from a knife.

Rather, the nature of the injuries sustained by him bespeak of the truth

of the prosecution case that he was beaten by the persons who had

gathered there. On the other hand, PW1 Rajesh sustained an injury

on his neck as well as on the scapula. An injury on the neck and

scapula could not have been self-inflicted by him nor it is so claimed

by the defence. The accused was in an inebriated state as evidenced

by his MLC and in such a state he attacked his cousin sister with a

knife and thereafter PW1 who sought to intervene to save his sister.

The knife was found stained with human blood of „A‟ Group. The

pant of the accused as per the report of the serologist was also found

to contain human blood of Group „A‟. No explanation has been

rendered by the accused to explain away these incriminating

circumstances.

30. The contention of the Appellant‟s counsel that the sketch of the

knife prepared by the IO and the sketch of the knife prepared by the

doctor are at variance with each other is also untenable. A

comparison of the two sketches shows that in the sketch of the knife

prepared by the IO (Ex.PW16/B) the handle is shown to be of 8 cms.

and the blade is 7.5 cms. The sketch of the knife prepared by the

doctor (Ex.PW19/C) shows the handle of the knife to be 7.5 cms.

(instead of 8 cms.) and the blade to be 8.5 cms. (instead of 7.5 cms.).

Not much importance can be attached to the fact that there is a slight

variation of 0.5 cms. to 1 cm. in the dimensions of the handle and

blade of the knife prepared respectively by the Investigating Officer

and the forensic expert nor in our opinion much significance can be

attached to a stray sentence in the testimony of PW1 Rajkumar that he

had snatched the knife from the accused, more so when PW2

Rajkumar has categorically stated in his testimony that he had seen

the accused running away with the knife and the knife recovered from

the roof of the adjoining jhuggi was found to contain blood of the

same blood group as that found on the pant of the deceased seized

vide seizure memo Ex.PW16/D. Further, no suggestion was put to

any witness in cross-examination that the knife produced was not the

knife recovered on the disclosure of the accused or with regard to the

dimensions of the knife as measured by the Investigating Officer and

as measured by the forensic expert.

31. To conclude, the entire case of the prosecution hinges on the

testimonies of the two brothers of the deceased, one of whom is an

injured witness. We find the aforesaid testimonies worthy of

credence. The medical evidence lends further credence to the ocular

testimony. The report of the serologist is clinching evidence against

the accused. We, therefore, see no reason to differ from the

conclusions arrived at by the trial court with regard to the guilt of the

accused. No evidence has been adduced by the accused in his

defence and even Vinod the real brother of the deceased has not been

examined by the accused to dislodge the prosecution case. The

reason for his non-production does not appear to us far to seek.

32. We, therefore, dismiss the appeal upholding the conviction and

sentence of the Appellant both under Sections 302 and 307 of the

Indian Penal Code.

REVA KHETRAPAL JUDGE

SUNITA GUPTA JUDGE May 20, 2013 km