CRL.A. 581/2002 Page 1 of 38

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 09.04.2026

Pronounced on: 26.05.2026

+ CRL.A. 581/2002

RAJINDER & ORS. .....Appellants

Through: Mr.Manoranjan Kumar, Adv.

versus

STATE N.C.T. OF DELHI .....Respondent

Through: Mr.Aman Usman, APP with

Mr.Manvendra Yadav, Adv.

and Insp. Anand Prakash, SI

Pardeep Kumar, PS K. M. Pur

for State

Mr.Raj Aryan Singh, Adv. for

the complainant

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

HON'BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T

NAVIN CHAWLA, J.

1. The present appeal has been preferred by the appellants,

challenging the Judgment of conviction dated 28.05.2002 passed by

the learned Additional Sessions Judge, New Delhi (hereinafter

referred to as, the „Trial Court‟), in Sessions Case No. 187/1999,

arising out of FIR No. 309/1999, registered at Police Station Kotla

Mubarakpur, convicting them of the offence punishable under Section

302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter

referred to as „IPC‟).

CRL.A. 581/2002 Page 2 of 38

2. The appellants further challenge the Order on sentence dated

30.05.2002 passed by the learned Trial Court, sentencing them to

undergo life imprisonment along with a fine of Rs. 5,000/- each for

the offence under Section 302 read with Section 34 of the IPC. In

default of payment of the said fine, they have been sentenced to

undergo further rigorous imprisonment for a period of six months.

3. At the outset, it is noted that appellant no. 4/Jasvinder @ Sunny

passed away on 27.04.2010. Accordingly, as recorded in the order

dated 10.12.2015, the present appeal stands abated qua appellant no.4.

CASE OF THE PROSECUTION

4. Briefly stated, it is the case of the prosecution that:

(a) On the day of the incident, that is, in the night intervening

23.06.1999 and 24.06.1999, at about 12:30 a.m., the deceased-Rakesh

Kumar went to check whether the tractor-trolley he had hired to

remove the debris of his dismantled house had arrived or not. When he

did not return for some time, PW-1/Suresh Kumar, the brother of the

deceased, went in search of him.

(b) Upon reaching outside the gali, PW-1/Suresh Kumar saw that

the deceased, who had his back towards PW-1, was surrounded by the

appellants, namely, Rajinder (appellant no.1), Ravi Kumar @ Raju

(appellant no.2), Mangal Khatri (appellant no.3) and Jasvinder @

Sunny (appellant no.4). He saw that the appellant no.1/Rajinder had

restrained the deceased by holding his hands behind his back, while

the appellant no.2/Ravi Kumar was stabbing him from the front side

and was saying that he would not leave him alive today. On his right

CRL.A. 581/2002 Page 3 of 38

side was appellant no.3/Mangal Khatri, who was exhorting „maar

saale ko‟ (kill the scoundrel). On the right side of the deceased was

appellant no.4/ Jasvinder @ Sunny, who was holding a knife and was

saying, „Raju, he (Rakesh) is not to be spared today‟.

(c) On witnessing the incident, PW-1/Suresh Kumar cried to save

his brother and rushed towards the deceased, upon which the

appellants ran towards the broken wall of pump house, jumped the

wall and fled into the park. The deceased fell in injured condition. On

hearing their cries, PW-3/Gopal Kumar, brother of PW-1 and

deceased, and some neighbours gathered at the place of the incident.

(d) PW-3 informed the police at 100 number of the incident, using

the phone at their residence. The same was recorded vide DD No. 22A

at 1:06 a.m.

(e) Thereafter, PW-1/Suresh Kumar and PW-3/Gopal Kumar

immediately took the deceased to AIIMS, where he was declared

brought dead. Information of the same was received from the Duty

Constable and was recorded as DD No.23 at 1:20 a.m.

(f) The police, after receiving the information of stabbing, went to

the spot and learnt that the injured was removed to hospital. The

police then went to AIIMS. As the deceased had died, statement of

PW-1 was recorded in the hospital itself by the I.O. and the rukka was

sent to the Police Station for registration of FIR at 03:10 a.m.

(g) The FIR was registered on 24.06.1999, at around 03:25 a.m., on

the basis of the statement of the complainant, PW-1/Suresh Kumar, in

which all the appellants were named by him as the assailants.

CRL.A. 581/2002 Page 4 of 38

(h) PW-2/Dr. T. Millo conducted the post-mortem examination of

the deceased and found seven stab wounds and three incised wounds

on the chest region of the deceased. The death of the victim was

opined to have taken place due to haemorrhagic shock caused due to

injury nos. 1 to 5, which were opined to be sufficient to cause death in

the ordinary course of nature. It was also opined that the injuries were

inflicted by a sharp and pointed weapon.

(i) During the course of investigation, appellant no.1/Rajinder was

arrested in the evening of 24.06.1999, from outside his house. The

remaining three appellants moved an application before Court, seeking

to surrender on 29.06.1999, however, they did not do so and were later

apprehended on the same day from Sarai Kale Khan bus-stand, when

they were allegedly attempting to leave Delhi.

(j) It is further the case of the prosecution that upon their arrest, the

disclosure statements of the appellants were recorded. Pursuant

thereto, appellant no.2/Ravi @ Raju led the police to his meat shop

and got three blood-stained knives and one blood-stained T-shirt

recovered. He also got recovered his pants which he was wearing on

the day of the incident. At the instance of appellant no.1/Rajinder, a

scooter was recovered, which was allegedly used by the appellants for

running away after commission of the offence. Further, at the instance

of appellant no.4/Jasvinder @ Sunny, a shirt is stated to have been

recovered, which was allegedly worn by him at the time of the

incident, though later washed.

(k) The said recovered scooter belonged to one- Subhash Chander,

who had given it to appellant no.2/Ravi @ Raju.

CRL.A. 581/2002 Page 5 of 38

(l) From the disclosures of the appellants, it was further discovered

that the appellants had taken shelter after commission of the offence at

the house of one- Nem Singh.

(m) It is also the case of the prosecution that there was a history of

enmity between the appellant no.2/Ravi @ Raju and the deceased.

This enmity arose about eight to nine months prior to the alleged

incident, when the appellant no.2, along with one friend, Sudesh,

picked a fight with PW-5/Narender Kumar @ Bittoo with a view of

vacating him from the house of his paternal uncle (tau). The deceased,

along with PW-1/Suresh Kumar and PW-3/Gopal Kumar, had

intervened in the said altercation and had opposed the appellant

no.2/Ravi @ Raju. It is also stated that a police complaint in this

regard was also registered, pursuant to which the appellant no.2/Ravi

@ Raju and Sudesh were arrested. It is alleged that since happening of

this incident, appellant no.2 had become inimical towards the family

of the deceased and had also extended threats to them on several

instances.

5. Upon completion of investigation, chargesheet was filed against

the appellants for the offence under Section 302 read with Section 34

of the IPC. Subhash Chander and Nem Singh were charged for the

offence under Section 201 and Section 212 of the IPC, respectively.

6. The learned Trial Court, vide order dated 09.02.2000, framed

the charge against the appellants as under:

“That on 24.6.99 at about 12.30 a.m. on the

road near Sheetla Mandir, Bapu Park, within

the jurisdiction of P.S. Kotla Mubarakpur you

all in furtherance of your common intention

caused the death of Rakesh and thereby

CRL.A. 581/2002 Page 6 of 38

committed his murder and thus you committed

an offence punishable u/s 302 r/w 34 IPC and

within the cognizance of this court.

And I hereby direct you to be tried by this

court of Sessions on the above charge.”

7. The appellants pleaded not guilty and claimed trial.

8. As far as Subhash Chander is concerned, Charge was framed

under Section 201 of the IPC. Against Nem Singh, Charge under

Section 212 of the IPC was framed. They also pleaded not guilty to

the charges.

9. In support of its case, the prosecution examined 17 witnesses,

including PW-1/Suresh Kumar, who is stated to be the sole eye-

witness of the incident, as well as the concerned public and official

witnesses.

10. Thereafter, the statements of the appellants were recorded under

Section 313 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) on

10.09.2001, wherein they denied all the allegations made against them

and claimed false implication in a concocted case registered on the

basis of false testimonies of interested witnesses. The appellant

no.1/Rajinder stated that PW-1/Suresh Kumar had come to his house

in the evening of the day following the incident, and asked him to

depose against the other appellants. He refused, and that is why he has

been falsely implicated in the present matter. He also stated that he

had suffered hysterical convulsion and was lying in his bed at the time

of the incident. The appellant no.2/Ravi @ Raju stated that their false

implication stemmed from a misplaced suspicion of PW-1/Suresh that

the appellants had beaten PW-5/Narender Kumar @ Bittoo, who used

CRL.A. 581/2002 Page 7 of 38

to run auto rickshaw for PW-1/Suresh. Appellant no.3/Mangal further

stated that he was falsely implicated in the present case only because

he was the servant of appellant no.2/Ravi @ Raju.

11. In their defence, the appellants examined 4 witnesses,

contending that the appellant no.1/Rajinder was present at his house

on the night of the incident. DW-1/Kanhaiya Lal, DW-3/Babu Lal and

DW-4/Subhash Chander deposed that on the day of the incident, they

were present with appellant no.1/Rajinder at his house from about

11:00 p.m. till 2 a.m., as appellant no.1/Rajinder had suffered an

epileptic fit and was unconscious. They also stated that there was no

electricity in the area from around 11:30 p.m. to 12:30 a.m. Further,

DW-2/M.P. Singh, Jr. Engineer, DESU stated that a mechanic left at

around 11:30 p.m. and returned at 12:30 a.m. after repairing the fault

in electricity.

12. Upon appreciation of the evidence, the learned Trial Court held

that the prosecution had proved its case beyond reasonable doubt

against the appellants and convicted them under Section 302 read with

Section 34 of the IPC. The learned Trial Court concluded as under:

“14. Considering the testimony of PW-1,

CFSL report, recovery of knives and T-shirt at

the instance of accused Ravi, and the fact that

all accused persons were absconding after the

murder, they made application before the

magistrate for surrender but did not surrender

and were trying to abscond, show that they

were involved in the murder of deceased

Rakesh Kumar.

xxxx

18. It is argued by counsel for accused persons

that accused Rajendar and Mangal have not

been assigned any role of inflicting knife blows

CRL.A. 581/2002 Page 8 of 38

to Rakesh. Knife blows have been inflicted, as

per the prosecution, by accused Ravi and

Jasvinder @ Sunny. There-fore, these accused

persons had no role in the murder and their

mere presence on the spot should not be

considered that they participated in the

murder. The prosecution has proved that

accused Rajendar Kumar was holding the

hands of deceased Rakesh on his back, when

other two accused persons i.e. Jasvinder @

Sunny and Ravi @ Raju had given knife blows.

Mangal was also crying and calling for killing

Rakesh. It is to be noted that not two but three

meat cutting knives have been recovered at the

instance of Ravi @ Raju. The presence of

accused Mangal and Rajendar on the spot has

been proved by PW Suresh. All the four had

come to the spot in search of deceased Rakesh

in order to kill him. Murder had taken place at

12.30 a.m. in the night. It has also been proved

on record that Rakesh deceased was himself

facing some criminal trials and copies of

charge sheets and judgments have been placed

on record. It has been argued by counsel for

accused Rajendar that Rakesh was a hefty

strong person and accused Rajendar was a

lean and thin person. It would not have been

possible for Rajendar to hold his hands. I

consider that since deceased Rakesh was a

strong and hefty man, planning to kill him

must have been made by accused persons

collectively. Accused Rajendar has been

appearing in court and I do not find him a lean

and thin person. He is an ordinary built-up

person. All the four accused persons

collectively had killed Rakesh with the

common intention of murdering him and to

ensure this, they chose the time of midnight

and attacked him. The deceased was alone in

the gali. Since they were living in the same

area, they knew the habits of deceased and the

fact that he would be available at that hour of

the night. It has come on record that the

deceased made complaint to DESU at 11.30

p.m. and got the electricity rectified and that

CRL.A. 581/2002 Page 9 of 38

shows that deceased was very much available

at that time and was in the gali for

rectification of electricity and for getting the

malba (debris) picked-up and this fact was

known to accused persons, who had pre-

planned to murder him. I consider that the

four accused persons viz. Rajendar, Ravi @

Raju, Mangal and Jasvinder @ Sunny, with

common intention killed Rakesh and are guilty

of offence u/s 302 r/w sec. 34 IPC. They all are

convicted accordingly.

13. Thereafter, the Order on sentence dated 30.05.2002 was passed,

imposing the sentence as noted hereinabove on the appellants.

14. As far as accused Nem Singh and Subhash are concerned, they

were acquitted of the charges.

SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL

FOR THE APPELLANTS:

15. The learned counsel for the appellants submits that the learned

Trial Court has erred in relying upon the testimony of PW-1/Suresh.

On account of him being an interested and related witness, his

testimony had to be scrutinized with great caution. He points out that

there were material inconsistencies in his statement, inasmuch as, in

the rukka, he had stated that the stab injuries were inflicted by

appellant no.2/Ravi @ Raju, however, at the time of his examination-

in-chief he deposed that the injuries were inflicted by appellant

no.2/Ravi @ Raju and appellant no.4/Jasvinder @ Sunny, and finally,

in his cross-examination, he testified that he had not actually seen the

appellants inflicting stabs on the deceased but had only seen knives in

the hands of appellant nos. 2 and 4. Relying on the judgment of the

Supreme Court in Ramu Appa Mahapatar v. State of Maharashtra,

CRL.A. 581/2002 Page 10 of 38

(2025) 3 SCC 565, he submits that these omissions amount to a

contradiction, making PW-1/Suresh Kumar an unreliable witness. He

submits that if the eye-witness is not found reliable, his testimony

cannot form the basis of conviction of the appellants. In support, he

places reliance on the judgments of Supreme Court in George v. The

State of Tamil Nadu & Ors., 2024 INSC 974; Harvinder Singh alias

Bachhu v. State of Himachal Pradesh, 2023 SCC OnLine SC 1347;

Mahendra Singh & Ors. v. State of Madhya Pradesh, (2022) 7 SCC

157; Arjun Marik & Ors. v. State of Bihar, 1994 Supp (2) SCC 372;

Kannaiya v. State of Madhya Pradesh, 2025 SCC OnLine SC 2270;

Saheb, S/o Maroti Bhumre etc. v. State of Maharashtra, 2024 SCC

OnLine SC 2580; Amar Singh v. State (NCT of Delhi), (2020) 19

SCC 165; and of this Court in Manoj Shukla @ Prem v. State (Govt.

of NCT of Delhi), ILR (2012) 2 Del 782.

16. The learned counsel further submits that the testimony of PW-

3/Gopal Kumar also cannot be relied upon as he was not an eye-

witness to the incident. The evidence brought in by him is merely

hearsay evidence, as he was only apprised of the incident by PW-

1/Suresh Kumar on the way to the hospital. He further submits that the

prosecution‟s case also becomes doubtful from the fact that, PW-

3/Gopal Kumar, while informing the police, only mentioned that “ek

ladke ko chaaku maar diya hai” (a boy has been stabbed), which

seems unnatural considering that the deceased was his own brother.

17. He submits that there is also an unexplained delay in the

registration of the FIR, as the same was not recorded at the time of the

first receipt of information, that is, the call received about the stabbing

CRL.A. 581/2002 Page 11 of 38

or about the deceased being brought dead in the hospital, but only at

3:25 am on the basis of an alleged statement made by PW-1. He

submits that the first information of the offence was received at

around 01:00 a.m., vide DD No. 22A (Ex. PW-16/A), when PW-

3/Gopal Kumar had informed the police of the offence. However, the

FIR was registered only at 03:25 a.m. on the statement of PW-

1/Suresh. He submits that the delay in registration of the FIR casts a

doubt on PW-1 or PW-3 being witness to the incident and the case

being concocted later against the appellants. In support, he places

reliance on Allarakha Habib Memon & Ors. v. State of Gujarat,

(2024) 9 SCC 546; Amitbhai Anilchandra Shah v. Central Bureau of

Investigation & Anr., (2013) 6 SCC 348; Anju Chaudhary v. State of

Uttar Pradesh & Anr., (2013) 6 SCC 384; B. N. John v. State of U.P.

& Anr., 2025 SCC OnLine SC 7; Surender Kaushik & Ors. v. State

of Uttar Pradesh & Ors., (2013) 5 SCC 148; Ramesh Baburao

Devaskar & Ors. v. State of Maharashtra, (2007) 13 SCC 501;

Mahesh v. State, 2019 SCC OnLine All 3595 and, Sekaran v. State of

Tamil Nadu, (2024) 2 SCC 176.

18. He submits that there is also non-compliance with the mandate

of Section 157 of the Cr.P.C., which also creates a doubt on the case

of the prosecution. In support, he places reliance on Arjun Marik

(supra) and Usha R. Patwari v. Karnataka Lokayuktha, 2016 SCC

OnLine Kar 6899.

19. The learned counsel also disputes the prosecution‟s case

regarding enmity being the motive behind the offence and contends

that even if the animosity is assumed to exist qua appellant no.2/Ravi

CRL.A. 581/2002 Page 12 of 38

@ Raju, no motive has been attributed to appellant nos. 1, 3 and 4,

who are also alleged to have participated in the offence.

20. Relying on the judgment of the Supreme Court in Aslam @

Imran v. State of Madhya Pradesh, 2025 SCC OnLine SC 670, he

further submits that personal enmity is a double-edged sword and

cannot assist the prosecution case, rather shows a possibility of false

implication.

21. He submits that though it is the case of the prosecution that

PW-1/Suresh Kumar and PW-3/Gopal Kumar had removed the

deceased to the hospital, their clothes, which would have been blood-

stained, were not seized. This creates a serious doubt as to the

presence of PW-1 or PW-3 at the place of incident. In support, he

places reliance on the Judgment in Khima Vikamshi & Ors. v. State

of Gujarat, (2003) 9 SCC 420.

22. He submits that even though as per the prosecution witnesses,

there were independent witnesses present at the spot, none of them

were examined or produced before the learned Trial Court, thereby,

again raising a doubt on the case of the prosecution. In support, he

places reliance on Khima Vikamshi (supra).

23. The learned counsel contends that the weapons of offence, that

are, the knives, were recovered from an open space with no public

witnesses, thereby making the recovery in itself doubtful and not

credible. He submits that the presence of knives at the shop of

appellant no.2/Ravi @ Raju is not unnatural as the same was a meat

and chicken shop. To dilute the credence of the recovery, he relies on

CRL.A. 581/2002 Page 13 of 38

the judgment in Kattavellai @ Devakar v. State of Tamil Nadu, 2025

SCC OnLine SC 1439.

24. He further argues that the prosecution has failed to connect the

said weapons to the offence, as the knives were neither shown to the

doctor who conducted the post-mortem, nor were any fingerprints

lifted from them. He submits that mere match of blood group does not

ipso facto connect the weapon to the offence. Further, he contends that

the recovery, in itself, is doubtful on account of the long period of

time between the incident and the disclosure. In support, he places

reliance on Ishwar Singh v. State of Uttar Pradesh, (1976) 4 SCC

355; Kartarey & Ors. v. State of Uttar Pradesh, (1976) 1 SCC 172;

Harvinder Singh alias Bachhu (supra); Ashish Batham v. State of

Madhya Pradesh, (2002) 7 SCC 317; Allarakha Habib Memon

(supra) and, Khima Vikamshi (supra).

25. He further submits that the recovery of the weapon is only at the

instance of the appellant no.2 and is insufficient to convict the other

appellants. In support, he places reliance on Pancho v. State of

Haryana, (2011) 10 SCC 165 and Manoj Kumar Soni v. State of

Madhya Pradesh, (2024) 17 SCC 401.

26. He submits that the learned Trial Court has erred in drawing an

adverse inference of guilt from the allegation that the appellants had

absconded. He submits that this conduct is not unnatural and may be

out of a fear of arrest and harassment. In furtherance, he places

reliance on the judgments in S.K. Yusuf v. State of West Bengal,

(2011) 11 SCC 754; Harvinder Singh @ Bachhu (supra); Narayan

Yadav v. State of Chhattisgarh, 2025 INSC 927; and Bipin Kumar

CRL.A. 581/2002 Page 14 of 38

Mondal v. State of West Bengal, (2010) 12 SCC 91. He further

submits that even on facts, such an observation is incorrect, inasmuch

as appellant no.1 did not abscond and was arrested from outside his

house.

27. The learned counsel points out that the role assigned to

appellant no.3 is that of mere presence and generic exhortation. He

submits that the same is insufficient for conviction under Section 302

read with Section 34 of the IPC. In support, he places reliance on Vijai

@ Babban v. State of Uttar Pradesh, 2025:AHC:134249-DB.

28. The learned counsel also raises doubts on the credibility of the

MLC Report. He submits that the same fails to mention the names of

the alleged assailants. He further contends manipulation in the Report,

inasmuch as in the column for „name of relative or friend‟, „SURESH

KUMAR‟ and „Brother‟ has been written in a different handwriting.

He submits that the MLC Report also fails to mention the nature of the

weapon used.

29. The learned counsel submits that the prosecution has also failed

to show that there was sufficient light on the spot of the incident, and

contends that it is hard to believe that the eye-witness, PW-1, could

have accurately identified the appellants and the weapons being used

by them. He submits that even the site plan (Ex. PW-17C) is not

reliable as it fails to mention the source of light. For the same, he

relies upon the judgment in Kannaiya (supra).

30. He further submits that even trails of blood, house of the

deceased, and the route of the deceased, have not been shown in the

site plan.

CRL.A. 581/2002 Page 15 of 38

31. He submits that in view of the above, and considering the

testimony of the defence witnesses, the benefit of doubt has to be

given to the appellants. He submits that conviction cannot be based on

conjectures and surmises. In support, he places reliance on Vaibhav v.

State of Maharashtra, (2025) 8 SCC 315 and Krishnegowda & Ors.

v. State of Karnataka, (2017) 13 SCC 98.

32. He submits that the learned Trial Court has not given due

credence and weightage to the witnesses produced in defence of the

appellant no.1. He submits that such defence witnesses are entitled to

equivalent credence as those produced by the prosecution. In support,

he places reliance on Mahendra Singh (supra) and Vaibhav (supra).

33. The learned counsel prays that the judgment of conviction and

the order on sentence, therefore, deserve to be set aside, and the

appellants deserve to be acquitted of all charges and allegations.

SUBMISSIONS ON BEHALF OF THE LEARNED A DDITIONAL

PUBLIC PROSECUTOR

34. Mr. Aman Usman, the learned APP for the State, submits that

there are no infirmities in the conviction and sentence awarded to the

appellants, and the same do not warrant any interference by this

Court.

35. He submits that the testimony of the sole eye-witness,

PW-1/Suresh Kumar, who is also the brother of the deceased, is

trustworthy and well corroborated by the surrounding circumstances,

that is, the other witness testimonies and DD entries. It is contended

that minor discrepancies, if any, are inconsequential and cannot

CRL.A. 581/2002 Page 16 of 38

affect the prosecution‟s case, rather, they prove the bona fide of PW-

1/Suresh Kumar. He submits that the testimony of PW-1 cannot be

disregarded only on the ground that he is related to the deceased. In

support, he places reliance on the judgment of the Jammu and

Kashmir High Court in Pritam Singh v. State, 2022:JKLHC-

JMU:2885-DB.

36. On the question of PW-1/Suresh Kumar not seeing the actual

stabbing, he submits that the same does not go against the

prosecution‟s case, inasmuch as it was merely due to the deceased‟s

back being towards the witness and the injuries being inflicted on the

front side. He submits that the testimony of PW-1/Suresh Kumar, in

fact, clearly establishes active participation of the appellants. The

learned APP also argues that had the prosecution wanted to falsely

implicate the appellants in the present case, it could have projected

the other witnesses also as eye-witnesses.

37. The learned APP further submits that there is no infirmity in

the registration of the FIR, which was lodged promptly, that is, by

03:25 a.m. He emphasises that the FIR, in fact, furthers the

prosecution‟s case, as the names of all the four appellants were

disclosed at the earliest opportunity, thereby ruling out the possibility

of false implication as an after-thought. In view of this, he contends

that the absence of appellants‟ name in the MLC Report is irrelevant,

especially considering the state of shock PW-1/Suresh Kumar and

PW-3/Gopal Kumar would have been in.

38. The learned APP also refutes the contention that the recovery

at the instance of appellant no.2/Ravi @ Raju was effected from an

CRL.A. 581/2002 Page 17 of 38

open space and therefore, cannot support the prosecution‟s case. He

submits that although the place of recovery may have been open to

sky, the articles were recovered from a concealed place, that is, under

a takht in the junk area within the boundaries of the meat shop of

appellant no.2.

39. He points out that PW-2/Dr. T. Millo categorically opined that

that the injuries on the deceased were caused by a sharp cutting

object. Further, the knives recovered at the instance of appellant

no.2/Ravi @ Raju were found to contain blood of the same blood

group as that of the deceased. He contends that thus, the recoveries

establish an unbroken forensic link connecting the appellants to the

offence and lending corroboration to the direct evidence given by

PW-1/Suresh Kumar. In view of the above, he submits that no

adverse inference can be drawn for the non-production of the

recovered knives to the doctor for opinion, as it does not dilute the

prosecution‟s case which is based on direct evidence. Reliance to this

effect is placed on the judgment of the Supreme Court in

Ghanshyam Mandal & Ors. v. The State of Bihar (Now

Jharkhand), 2026 INSC 194 and the Jharkhand High Court in

Doman Murmu @ Ramdhu Murma v. The State of Jharkhand,

2024:JHHC:21102-DB.

40. He submits that the prosecution has also proved the motive of

the offence which involved a quarrel leading to appellant no.2

harbouring a deep grudge against the deceased and his family.

41. He further submits that though the appellant nos. 2, 3 and 4

moved a surrender application, they never appeared in Court. They

CRL.A. 581/2002 Page 18 of 38

were, in fact, apprehended when they were attempting to abscond.

He submits that this conduct reveals their consciousness of guilt and

is a strong incriminating circumstance in favour of the prosecution.

42. The learned APP submits that, in view of the above, the

conviction and sentence awarded by the learned Trial Court is based

on the corroborated testimony of the eye-witness PW-1/Suresh

Kumar, the recoveries made at the instance of the appellants, their

conduct after the incident and the CFSL Report, and hence, deserve

to be confirmed.

SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL

FOR THE COMPLAINANT

43. Mr. Ramesh Kumar Mishra, the learned counsel for the

complainant, while adopting the submissions advanced by the learned

APP, further emphasizes that the testimony of PW-1/Suresh Kumar is

trustworthy and unshaken, with no material contradictions. In support,

he places reliance on State of Himachal Pradesh v. Hukum Chand @

Monu, 2026 SCC OnLine SC 462 and Gurcharan Singh & Anr. v.

State of Punjab, 1962 SCC OnLine SC 42.

44. He further supports the submission of the learned APP that the

FIR was registered promptly and without any delay, having been

registered at 03:25 a.m. on the basis of the statement of PW-1/Suresh

Kumar, which was recorded within 2 hours of the incident from the

hospital itself, thereby ruling out the possibility of false implication of

the appellants.

45. The learned counsel also submits that the testimony of a related

CRL.A. 581/2002 Page 19 of 38

witness cannot be considered to be tainted evidence and cannot be

discarded on that ground alone. He submits that it also does not

require corroboration as a rule, and can form the basis of conviction, if

found to be credible. In furtherance, he places reliance on the

judgment of the Supreme Court in Sarwan Singh & Ors. v. State of

Punjab, (1976) 4 SCC 369. He further submits that a related witness

cannot be termed as an interested witness per se. He submits that a

related witness, particularly a family member, may be a natural

witness in cases taking place around the vicinity of the victim and the

witness. In this regard, reliance is placed on the judgments in Rajesh

Yadav & Anr. v. State of Uttar Pradesh, (2022) 12 SCC 200 and

State of Rajasthan v. Kalki & Anr., (1981) 2 SCC 752.

ANALYSIS AND FINDINGS

46. We have considered the submissions made by the learned

counsels for the parties and have also perused the records of the

learned Trial Court.

47. The case of the prosecution rests primarily on the testimony of

PW-1/Suresh Kumar, who has given a detailed account of the

assault, including the specific role attributed to each of the

appellants. He stated that on the night intervening 23

rd

and 24

th

June

1999 at about 12-12:30 a.m., a vehicle had come to lift malba from

the house of witness which was under construction. As he came out

of the gali, he saw that the appellants had surrounded the deceased.

Appellant-Rajinder had caught hold of the hands of the deceased on

his back. On the right hand side of the deceased was appellant no. 4-

CRL.A. 581/2002 Page 20 of 38

Jasvinder while on front was the appellant no. 2-Ravi @ Raju. On his

side, appellant no. 3- Mangal was standing. Raju and Mangal were

shouting “Maro Salley Ko Chorana Nahai”. Jasvinder was also

giving similar calls. Appellant no.2/Ravi @ Raju and appellant no.4/

Jasvinder @ Sunny inflicted knife blows on the deceased. By the

time he reached to the deceased, the deceased had already fallen on

the ground. The appellants, on seeing the PW-1 approaching the

deceased, ran away towards the park side. PW-1 then called for PW-

3/Gopal Kumar and other persons from neighbourhood also gathered

there. He asked PW-3/Gopal Kumar to inform the police. Thereafter,

the deceased was taken to AIIMS.

48. PW-1/Suresh also testified that the appellant no.2 was holding

a grudge against the deceased and his family for the past 8-9 months,

on account of their intervention in a quarrel between PW-5/Narender

and appellant no.2/Ravi @ Raju, which resulted in an FIR and

subsequent arrest of appellant no.2. He states that on 24.06.1999, at

about 8 or 8:30 pm, he had noticed Appellant-Rajinder pass from the

gali and he immediately informed the SHO. SHO accompanied him

to the house of Rajinder from where Rajinder was arrested.

49. In his cross-examination, he stated that the deceased had gone

to the malba site and when he did not come for about 10 minutes, he

had gone from his room to see the deceased. He stated that the tractor

trolley which had to lift the malba had not come for lifting the same

and the deceased had gone to check if it has come or not. To a

specific question asked, he stated that there was light in the gali and

on the road. He stated that as far as appellant no.1/Rajinder is

CRL.A. 581/2002 Page 21 of 38

concerned, he or his family had no quarrel or enmity with the

deceased prior to the incident. He stated that he was just 20-25 yards

away from the place where appellant-Rajinder was holding the hands

of the deceased. He further admitted that he did not actually see the

inflicting of stab wound by appellant Ravi @ Raju and appellant

Jasvinder @ Sunny, though he had seen knives in their hands.

50. The testimony of PW-1/Suresh Kumar is corroborated by the

testimony of PW-3/Gopal Kumar, who deposed that on the night of

the incident, upon hearing cries of PW-1/Suresh Kumar, he went to

the gali and saw the deceased lying on the ground in an unconscious

state and PW-1 crying near him. PW-1 told him to give a call to

police from the house. He immediately went to the house and called

the police, whereafter, he returned and took the deceased to the

hospital along with PW-1/Suresh Kumar. He further stated that on

the way to the hospital, PW-1/Suresh Kumar named the appellants as

the assailants of their brother. He also stated that the appellants had

inimical relations with them for 8-9 months preceding the incident.

51. The statements of PW-1/Suresh Kumar and PW-3/Gopal

Kumar are further corroborated by the testimony of PW-4/Gauri

Devi, the mother of the deceased, as also of PW-1 and PW-3. She

stated that on the fateful day, PW-3 had called at 100 number from

the telephone installed at her home and she had heard him telling the

police that his brother had received stab injuries. This call is

corroborated by DD No. 22 (Ex. PW12/A) and by DD No. 22A (Ex.

PW16/A) recording the factum of the call received from the

telephone number installed in the house of PW-4.

CRL.A. 581/2002 Page 22 of 38

52. From the above testimonies, the presence of PW-1 and his

witnessing the incident stands proved. He has deposed of the exact

role of each of the appellants. Minor contradictions, if one may even

call them contradictions, do not in any manner detract from his

statement or cast an iota of doubt on the same.

53. The testimony of PW-1 gets further corroborated by the MLC

Report (Ex. PW15/A), wherein the deceased is reported to have been

brought to the hospital by PW-1. The submission of the learned

counsel for the appellants that the name of PW-1 has been

subsequently added to this report, does not hold much water, as the

name, age and address of the deceased is recorded in the MLC

Report, which could have been given only by PW-1. The relationship

of the person bringing the deceased is described as „brother‟. Even if

the name of PW-1 is written later, it is because the first concern of

the doctor has to be to check the patient and not to complete all the

formalities in the form.

54. Much emphasis has been laid by the learned counsel for the

appellants on the non-seizure of the blood-stained clothes of PW-1

and PW-3. He submits that this shows that the deceased was not

shifted to the hospital by them. We do not find any merit in the said

submission. While it would have been better for the prosecution to

have seized the blood-stained clothes of PW-1 and PW-3, however,

mere non-seizure of the same cannot be said to be fatal to the case of

the prosecution or as casting a doubt on its case, especially where,

from the evidence on record, the PW-1 and PW-3 come out to be

wholly reliable witnesses. The DD No. 23 (Ex.PW-12/B) records the

CRL.A. 581/2002 Page 23 of 38

information received from AIIMS at 1:20 a.m. from Duty Constable

Narender Kumar regarding a boy being brought by his brother, PW-

1/Suresh, with stab injuries, and having been declared as „brought

dead‟ by the doctors. This itself shows that it is the PW-1 who had

shifted the deceased to the hospital.

55. In Khima Vikamshi (supra), the Supreme Court found the

alleged eye-witness therein, the daughter-in-law of the deceased, to

be unreliable. It was held that her presence at the spot and the

manner she described the incident, was doubtful. Similarly, the

presence of the brother of the deceased at the spot was doubted and

his sudden appearance was found to be “too much of a coincidence to

accept”. In the light of these doubts, the Supreme Court also laid

emphasis on the non-seizure of the clothes of these witnesses. The

said judgment is therefore, distinguishable on facts inasmuch as, in

the present case, the presence of PW-1 and PW-3 gets corroborated

from other evidence as well.

56. The submission of the learned counsel for the appellants that

PW-1/Suresh Kumar cannot be believed as he is an interested

witness, does not impress us. Though PW-1/Suresh Kumar is the

brother of the deceased, this, in itself, is not sufficient to discredit his

testimony, especially when it stands corroborated by the other

evidence on record.

57. In Kalki (supra), the Supreme Court rejected the submission

that the testimony of the wife of the deceased could not be relied

upon as she was „highly interested‟ witness, by observing that

„related is not equivalent to interested‟. A witness may be called

CRL.A. 581/2002 Page 24 of 38

„interested‟ only when he/she derives some benefit from the result of

a litigation; a witness who is the natural one and is the only possible

eye-witness in the circumstances of the case, cannot be said to be

„interested‟. On the plea of there being discrepancies in the evidence

of the witnesses, the Supreme Court clarified that material

discrepancies are those which are not normal and not expected of a

normal person. Normal errors of observation, normal errors of

memory due to lapse of time or due to mental disposition, such as

shock and horror at the time of the occurrence, and the like, cannot

be said to be material discrepancies so as to discard the testimony of

the witness.

58. In Sarwan Singh (supra), the Supreme Court clarified that it

is not the law that the evidence of an interested witness should be

equated with that of a tainted witness; it is only a rule of prudence

that the evidence of an interested witness should be scrutinised with a

little extra care. Once that approach is made and the court is satisfied

that the evidence of the interested witness has a ring of truth, such

evidence could be relied upon even without corroboration. It was

also opined that there may be circumstances where only interested

witnesses may be available, like occurrences that take place at

midnight in the house. In such cases, it would not be proper to

disbelieve the evidence of interested witness/family members only

because of their interest.

59. In Rajesh Yadav (supra), the Supreme Court reiterated the

above test of examining the testimony of a so-called „interested

witness‟, as under:

CRL.A. 581/2002 Page 25 of 38

“31. A related witness cannot be termed as an

interested witness per se. One has to see the

place of occurrence along with other

circumstances. A related witness can also be a

natural witness. If an offence is committed

within the precincts of the deceased, the

presence of his family members cannot be

ruled out, as they assume the position of

natural witnesses. When their evidence is

clear, cogent and withstood the rigour of

cross-examination, it becomes sterling, not

requiring further corroboration. A related

witness would become an interested witness,

only when he is desirous of implicating the

accused in rendering a conviction, on purpose.

32. When the court is convinced with the

quality of the evidence produced,

notwithstanding the classification as quoted

above, it becomes the best evidence. Such

testimony being natural, adding to the degree

of probability, the court has to make reliance

upon it in proving a fact. The aforesaid

position of law has been well laid down in

Bhaskarrao v. State of Maharashtra…

xxx

33. Once again, we reiterate with a word of

caution, the trial court is the best court to

decide on the aforesaid aspect as no

mathematical calculation or straitjacket

formula can be made on the assessment of a

witness, as the journey towards the truth can

be seen better through the eyes of the trial

Judge. In fact, this is the real objective behind

the enactment itself which extends the

maximum discretion to the court.”

60. In George (supra), the Supreme Court reiterated that merely

because a witness is an interested witness, it cannot be a ground to

discard the testimony of such a witness; only the testimony of such a

witness has to be scrutinised with greater caution and

circumspection.

CRL.A. 581/2002 Page 26 of 38

61. We need not multiply the authorities on the above proposition.

In the present case, as we have noted hereinabove, PW-1/Suresh has

stood out as a “wholly reliable” witness, whose testimony stands

corroborated by the other evidences on record. We find no reason to

disbelieve him because of the minor contradictions that have been

pointed out by the learned counsel for the appellants.

62. Though in a case where the incident is proved through an eye-

witness, the presence of a motive for the crime may not be essential.

In the present case, even motive stands proved through the testimony

of PW-5/Narender Kumar, who used to run auto rickshaw for PW-

1/Suresh Kumar. He stated that he used to reside in the house of one

Bhagwana, who is the paternal uncle (tau) of the appellant no. 2/Ravi

@ Raju, and was located opposite to the house of the deceased and

his brothers. He stated that on 13.09.1998, in order to get the house

vacated, appellant no.2, along with a friend, Sudesh, was assaulting

him, when the deceased, PW-1/Suresh Kumar and PW-3/Gopal

Kumar intervened, pursuant to which the appellant no.2 was arrested.

He also stated that appellant no.2 had, on various occasions, asked

him to bring the deceased at some place to which he had refused.

63. The submission of the learned counsel for the appellants that

as there was enmity between the deceased, PW-1 and PW-3, on the

one side, and the appellants on the other, the testimony of PW-1 and

PW-3 cannot be relied upon, also cannot be accepted. As rightly

contended by the learned counsel for the appellants, enmity is a

double-edged sword and, therefore, while proof of motive for the

offence may support the prosecution‟s case, at the same time, it may

CRL.A. 581/2002 Page 27 of 38

also give rise to a possibility of a false implication. Therefore, in

such circumstances, the testimony of the witness needs to be

examined more carefully. In the present case, when so examined,

PW-1 and PW-3 come out to be reliable witnesses. In this regard, we

would also note that there is no true enmity between the two parties.

It is, in fact, the appellant who carried a grudge against the deceased,

PW-1 and PW-3, for taking the side of PW-5/Narender Kumar in an

alleged fight between the appellant no.2/Ravi @ Raju and PW-5.

64. We may herein also note that PW-3/Gopal Kumar has not been

set up by the prosecution as an eyewitness to the incident. It is on

hearing the hue and cry of PW-1/Suresh Kumar that he had come out

of his house and was informed by PW-1/Suresh Kumar that the

deceased has been stabbed. He ran back to the house to give a call to

the police. Merely because in the PCR complaint, instead of writing

the name of the deceased, it is written „ek ladke ko chaaku maar diya

hai‟, it cannot be said that the incident as described by PW-1 and

PW-3, cannot be accepted. The manner in which the entry is

recorded in the PCR register, cannot undermine the otherwise

corroborated testimonies of these witnesses. It could be the manner

in which PW-3 informed the police in his anxiety seeing the state of

the deceased or the casual manner in which the information was

recorded by the concerned police officer. In either way, it does not

undermine the manner in which the incident has been described by

the prosecution witnesses, and rather, renders a ring of truth on the

same. If the PW-1 was to be set up as a false eye-witness, nothing

stopped the prosecution to also set up PW-3 as the same, along with

CRL.A. 581/2002 Page 28 of 38

PW-1. In fact, this itself shows that PW-1 alone was the eye-witness,

whose testimony gets corroborated with the testimony of other

witnesses and contemporaneous documents.

65. As far as the non-examination of public witnesses is

concerned, the same is certainly desirable, however, the case of the

prosecution cannot be doubted only because the police, in its

lackadaisical approach did not choose to record the statement of the

public witnesses, or because the public witnesses, not wanting to be

involved in criminal cases, especially of this nature, do not volunteer

to stand as witness. In the present case, the track record of the

deceased was not stellar, as is coming out from the cross-

examination of PW-1. In such a case, it would not be uncommon for

the public witnesses to stay away from the deceased‟s family, the

accused and the police. In fact, the motive in the present case itself is

that the deceased had stood as a witness/complainant against the

appellant no. 2 in his case against PW-5. Therefore, the case of the

prosecution cannot be doubted only because the public witnesses,

who, as per the prosecution, were not the eye-witness, were not

examined.

66. This now brings us to the submission of the learned counsel

for the appellants that there was a delay in registration of the FIR,

which in his submission is sufficient to create a doubt on the case of

the prosecution. As noted hereinabove, DD No.22 (Ex.PW-12/A)

was recorded on the call received at 01:06 a.m. of a boy being

stabbed. The mere fact that the name of the deceased was not written

therein, would not cast a doubt on the case of the prosecution as the

CRL.A. 581/2002 Page 29 of 38

phone number from which the call was made was duly mentioned in

the report. The person writing the information may or may not have

written the name of the injured. The said information was thereafter

communicated to the concerned police station vide DD No. 22A

(Ex.PW-16/A). The DD No. 23 (Ex.PW-12/B) records the

information received from AIIMS at 1:20 a.m. from Duty Constable

Narender Kumar regarding a boy being brought by his brother, PW-

1/Suresh Kumar, with stab injuries, and having been declared as

„brought dead‟ by the doctors. PW-16/SI Raghunath (Retd.) states

that he had been handed over DD No. 22A for investigation. He

reached the spot of the incident and after leaving Constable Prem

Kumar there, he went to AIIMS, where he met Constable Kamaljeet,

who, in turn, handed him over DD No.23A (Ex. PW-16/B) and the

MLC Report. He states that thereafter PW-17/Insp. Greesh Kumar,

SHO at P.S. K.M. Pur, recorded the statement of PW-1/Suresh

Kumar (Ex.PW-1/A) and sent Constable Nasib Singh with the rukka

for registration of the FIR. The FIR (Ex. PW-12/D) was then

registered at 03:25 a.m. on 24.06.1999. There is, therefore, no delay

in registration of the FIR. In fact, we must herein note that in Ex.PW-

1/A, that is, the statement of PW-1/Suresh Kumar, the entire incident

was narrated by him by naming the appellants as the assailants. The

time gap between the incident, the shifting of the deceased to the

hospital, the reaching of the SHO there, and the recording of the

statement of PW-1 is so short that it rules out making out of a false

case against the appellants.

67. In Allarakha Habib Memon (supra), the Supreme Court found

CRL.A. 581/2002 Page 30 of 38

serious discrepancies in the registration of the FIR. It found that the

police constable had seen the incident and had also brought the crime

weapon to the police station. However, his statement was not

recorded by the police, nor was any entry made regarding the factum

of presentation of the weapon in the daily diary (roznamcha) of the

police station. There was a further discrepancy in the statement of the

witness, on basis of which the FIR was registered, as to whether it

was recorded at the hospital or in the police station. The Court also

found that there was also a discussion held amongst the relatives as

to the manner in which the complaint was to be drafted and lodged.

In the present case, as we have noted hereinabove, the initial call

made by PW-3/Gopal Kumar could not be the basis of the

registration of the FIR. On the police party reaching the place of

incident, it came to know that the deceased had been removed to the

hospital. At the hospital, the statement of PW-1/Suresh Kumar was

recorded, on the basis of which the FIR was registered. We find no

infirmity in the same. We also find that there was no time gap or

delay in registration of the FIR which could have cast a doubt on the

version of PW-1/Suresh Kumar or on the contents of the FIR.

68. In Amitbhai Anilchandra Shah (supra), the second FIR was

registered for different offence committed as part of a single

conspiracy, and in the same transaction. The Supreme Court held that

under the scheme of the relevant provisions of the Cr.P.C., only the

earliest or the first information in regard to the commission of a

cognizable offence satisfies the requirement of Section 154 of

Cr.P.C. and, therefore, there can be no second FIR, and

CRL.A. 581/2002 Page 31 of 38

consequently, there can be no fresh investigation on receipt of every

subsequent information in respect of the same cognizable offence or

the same occurrence or incident, giving rise to one or more

cognizable offences. It was held that a second FIR (which is not a

cross-case) in respect of an offence or different offences committed

in the course of the same transaction, is not only impermissible, but it

also violates Article 21 of the Constitution of India. The said

judgment will have no application to the facts of this case.

69. We, again, need not multiply the authorities on the above

proposition which is well-settled, however, in the facts of the present

case have no application.

70. The aspect of alleged delay in registration of the FIR has also

been considered by the learned Trial Court in detail, and has been

rejected by observing as under:

“7. …There is some timing difference, in the

time of murder stated by witness Suresh and

recording of DD Ex.PW.12/A, which is

DD.No.22A. This time difference has been

explained by the prosecution and it is

submitted by ld. APP that Gopal made call to

police control room and there is a procedure

followed at police control room that a form is

filled after receipt of the call, then this form is

sent to wireless message room and from there,

wireless message is sent to the nearest PCR

van and direction is given to come into action

and then the report is made to the local police

and this process takes 10-15 minutes. The gap

in time can also be explained from the fact that

deceased was examined by the doctor in

casualty at 1.09 hours. It must have taken

sometime in removing the deceased from Kotla

Mubarakpur in a three wheeler scooter and

then taking him to AIIMS in the Casualty and

CRL.A. 581/2002 Page 32 of 38

then the doctor examined him and the fact that

doctor examined him at 1.09 hours in the

night, shows that deceased must have been

removed from the place of incident around

12.45/12.50 a.m. as 20 minutes is the

approximate time, which would have been

spent in removing the person from a place at

K. M. Pur till taking him to AIIMS’ Casualty.

I, therefore, consider that the time given of the

incident by witness Suresh was the correct

time.”

71. We concur with the above opinion of the learned Trial Court.

72. The learned counsel for the appellants has urged that there was

non-compliance with Section 157 of the Cr.P.C. Even this

submission of the appellants cannot be accepted. PW-12/Head

Constable Karan Singh, had stated that after recording the FIR, he

sent a special messenger- Constable Pramod Kumar (PW-9) for

taking a copy of the FIR to senior police officers and the concerned

Magistrate. His testimony stands corroborated with the statement of

PW-9/Constable Pramod Kumar, who stated that on being handed

over the copy of the FIR in a sealed envelope, he delivered the same

to the Area Magistrate and other senior police officers. He was not

cross-examined on this.

73. This now brings us to the recovery of the knives and the T-

shirt at the behest of the appellant no.2/ Ravi @ Raju. PW-13/Head

Constable Satbir Singh deposed that on 29.06.1999, SHO received an

intimation that the accused persons were attempting to leave Delhi

from bus stand Sarai Kale Khan. They went to Sarai Kale Khan,

where they found appellant no.2, whom he knew from before,

standing at the Ring Road bus stand. He told the SHO about the same

CRL.A. 581/2002 Page 33 of 38

and the SHO, with the help of the other police staff, including PW-

13, apprehended the appellant no.2, appellant no.3 and appellant no.4

and their disclosure statements were recorded (Ex.PW-17/E, 17/F

and 17/G). He further states that thereafter they took the said

appellants with them to the shop of appellant no.2/Ravi @ Raju.

While the other two appellants were left in the vehicle, the appellant

no.2 led them behind a shop and from there, under a wooden takht,

where other junk material was lying, he pulled out a white polythene

containing one white T-shirt, and three knives (chhuriya) which were

having blood stains. The T-shirt was also having blood stains.

Similar is the testimony of PW-17/Insp. Greesh Kumar. The

appellants have assailed the said recovery by stating that even

accepting the case of the prosecution, the knives have been recovered

from an open space behind the shop of appellant no.2 and, therefore,

no reliance can be placed on the same. We are unable to accept the

said submission, as the knives have been recovered from under the

takht behind the shop of the appellant no.2, kept concealed in a

polythene bag along with other junk material. It was, therefore, not

lying in the open.

74. The appellant nos.1 and 3 have also contended that as these

knives were recovered at the pointing of the appellant no.2/Ravi @

Raju, they can be used only in evidence against the said appellant.

While we do find merit in the same contention, in our view, in the

presence of direct eye-witness testimony, and other evidence in form

of testimonies of other witnesses and documents, the recovery of

knives is also one of the circumstances which connects the appellants

CRL.A. 581/2002 Page 34 of 38

with the crime.

75. The learned counsel for the appellants is also correct in his

submission that ideally the knives should have been shown to PW-

2/Dr.T. Millo, who had conducted the post-mortem on the deceased,

for obtaining an opinion on whether the injuries could have been

caused by the same. However, in the present case, the prosecution

has tried to connect these knives with the crime through the CFSL

Report (Ex.PW-7/B), which opined that two of the three knives, that

is, Ex.11 and Ex.12, as also the T-shirt (Ex.10), recovered at the

behest of the appellant no.2, had human blood of AB group, which is

also the blood group of the deceased. Suggestions were given by the

appellants to PW-17/Insp. Greesh Kumar that he had picked up the

meat-cutting chhura from the meat shop of appellant no. 2/Ravi @

Raju and had poured blood collected by him from the hospital.

However, the suggestion was denied and there is also no material to

support such suggestion of the appellants. Therefore, in our view, the

prosecution has also been able to connect the recoveries made at the

behest of the appellant no.2 to the crime.

76. In Ishwar Singh (supra), there were two accused who were

alleged to be carrying two different kinds of weapons, one a ballam

and the other a bhala. In these facts, the Supreme Court held that not

obtaining an opinion of the medical expert as to which weapon

caused the injury, casts a doubt on which of the accused had given

the fatal blow and therefore, conviction of one of them under Section

302 of the IPC cannot be sustained. The Supreme Court relied upon

its earlier judgment in Kartarey (supra), wherein it was held as

CRL.A. 581/2002 Page 35 of 38

under:

“26. We take this opportunity of emphasising

the importance of eliciting the opinion of the

medical witness, who had examined injuries of

the victim, more specifically on this point, for

the proper administration of justice.

particularly in a case where injuries found are

forensically of the same species. e.g. stab

wounds, and the problem before the Court is

whether all or any of those injuries could be

caused with one or more than one weapon. It

is the duty of the prosecution, and no less of

the Court, to see that the alleged weapon of

the offence, if available, is shown to the

medical witness and his opinion invited as to

whether all or any of the injuries on the victim

could be caused with that weapon. Failure to

do so may, sometimes, cause aberration in the

course of justice. Fortunately, in the instant

case, the number, nature and dimensions of

the injuries of the deceased, as deposed to by

Dr. Sohan Lal, afford a sure indication that

they were caused with three different

weapons.”

77. Therefore, if there are other evidence by which the weapon can

be connected with the injury, mere non-examination of the doctor on

the same would not be fatal to the case of the prosecution.

78. In Gurcharan Singh (supra), the Supreme Court has clarified

that it is not an inflexible rule that in every case where an accused

person is charged with murder caused by a lethal weapon, the

prosecution can succeed in proving the charge only if an expert is

examined. It is possible to imagine cases where the direct evidence is

of such an impeachable character and the nature of the injuries

disclosed by post-mortem notes is so clearly consistent with the

direct evidence that the examination of an expert may not be

CRL.A. 581/2002 Page 36 of 38

regarded as essential.

79. The learned counsel for the appellants has further contended

that the only role ascribed to the appellant no.3/Mangal Khatri is that

of exhortation and, therefore, he cannot be said to be sharing a

common intention with the other appellants to kill the deceased. The

said submission can also not be accepted. The entire incident has

been described by PW-1/Suresh Kumar. He had seen at least two

appellants stabbing the deceased, that is, the appellant no.2 and the

appellant no.4, with the appellant no.1 holding the deceased from the

back. There is also a recovery of a third knife at the behest of the

appellant no.2, which also contains human blood as per the CFSL

Report (Ex.17/B). The appellant no.3/Mangal Khari was not a mere

bystander, but when the appellant no.2 and the appellant no.4 were

inflicting the knife blows on the deceased, he was exhorting them to

do so. He clearly shared the common intention with the other

appellants to kill the deceased. We, therefore, do not find any merit

in the above submission of the learned counsel for the appellants.

80. As regards the submission of the learned counsel for the

appellants that the post-offence conduct of the appellants would not

be relevant against them, we may only note that the appellants have

absconded from the crime scene and were untraceable. While the

conduct of appellants cannot, by itself, be sufficient to bring home a

charge against the appellants, however, it may be considered by the

Court as one of the circumstances against them, along with the other

direct or circumstantial evidence on record. In Harvinder (supra),

Supreme Court held that a subsequent conduct would be a relevant

CRL.A. 581/2002 Page 37 of 38

fact under Section 8 of the Evidence Act, though it may by itself not

constitute the sole factor to convict a person. In the present case, the

charge is proved against the appellants beyond reasonable doubt,

through the testimony of the eye-witness and other corroborating

circumstances.

81. The submission of the learned counsel for the appellants that

the evidence given by the defence witnesses has been ignored by the

learned Trial Court, also cannot be accepted. The learned Trial Court

has considered the defence set up by the appellants and the

testimonies of the defence witnesses at length, and we may reproduce

the same as under:

“16. Accused Rajendar produced defence

evidence to show that he was present at his

house on that evening. He had suffered

epilepsy fit and was in his house from 11/11.30

p.m. to right upto 2.30 a.m. DW.1 is Kanhiya

Lal, a neighbour of Rajendar. He in his

examination-in-chief testified that when he

was at his shop, a child came to him to call

him to reach at the house of Rajendar as

Rajendar was not feeling well. It has come in

the evidence that Rajendar was having three

brothers and all the three were living in the

same house. When other brothers of accused

Rajendar were living in the same house with

their families, I do not find why this witness

would have been called, if Rajendar had

suffered epilepsy fit. It is a case of accused

himself that he was patient of epilepsy since

long. If a patient of epilepsy suffers fit at his

house, he recovers from the fit after sometime

and it is not something, for which messengers

are rushed to different places to call the

persons. Moreover, Kanhiya Lal is not a

doctor, who would have gone and given some

medicine, neither when he came, had taken

Rajendar to any doctor. DW.3 is Babu Lal,

CRL.A. 581/2002 Page 38 of 38

who also deposed about accused Rajendar

suffering from epilepsy and he stated that he

went to the house of Rajendar and kept sitting

there upto 2 a.m. in the night. Rajendar was

given some medicine. I consider his testimony

also most unnatural since those, who suffer

from epilepsy, do get fits occasionally and

when the fit is over, after sometime they

become normal. There is no reason for

anybody to remain upto 2 a.m. at the house of

such a person. These witnesses seem to have

been produced only to take the plea of alibi.

Similarly, DW.4 is also a witness of sitting

with Rajendar on that night upto 5/5.30 a.m.

as Rajendar had suffered epilepsy sit. I

consider that none of these witnesses are

believable on the point that they remained at

the house of Rajendar because he had suffered

a fit of epilepsy…”

82. For the reasons stated hereinabove, we find no merit in the

present appeal. The same is, accordingly, dismissed.

83. We, again, note that unfortunately the appellant no.4 has since

passed away and, therefore, his appeal has abated.

84. As far as the remaining appellants are concerned, they shall

surrender before the learned Trial Court within two weeks from

today, failing which the respondent shall ensure that they are taken

into custody for undergoing their remaining sentence.

85. A copy of this judgment be sent to the concerned Jail

Superintendent and the learned Trial Court for information and

ensuring compliance.

NAVIN CHAWLA, J.

RAVINDER DUDEJA , J.

MAY 26, 2026/sg/ns/Yg