REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1494 OF 2003
State of Himachal Pradesh .....Appellant
Versus
Rakesh Kumar .....Respondent
JUDGMENT
Dr. Mukundakam Sharma, J.
1. This is an appeal against the judgment and order of acquittal of
the accused-respondent by the Division Bench of the Himachal
Pradesh High Court whereby the High Court acquitted the
accused-respondent after he was found guilty under Section
302 of the Indian Penal Code (for short the `IPC’) by the Trial
Court, Mandi, Himachal Pradesh. Pursuant to the aforesaid
order of conviction the trial court sentenced the respondent to
undergo rigorous imprisonment for life and also to pay a fine of
Rs. 5,000/- and in default to undergo simple imprisonment for
six months.
2. Being aggrieved by the aforesaid order of conviction and
sentence, the respondent filed an appeal from jail before the
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Himachal Pradesh High Court which was heard and at the end,
the aforesaid order of acquittal was passed which is under
challenge in this appeal.
3. Before we deal with the contentions raised by the counsel
appearing for the parties, it would be necessary to notice the
facts which are the basis of the aforesaid criminal case.
Yash Pal (PW-3) was working as Chowkidar in Income Tax
Office at Mandi. Sanjiv Rana (PW-2) was working as Clerk in
Agriculture Land Development Bank, Mandi. Both of them were
related to each other and also hail from the same village. Gagnesh
Kaushal (PW-1) was one of their friends and was running his
painter’s shop at Paddal. On 13.1.2000, which was a Lohri day,
the deceased Sanjiv Sen arranged for a party in the house of Yash
Pal (PW-3) and invited Gagnesh Kaushal, Sanjiv Rana and
Sharwan Kumar to the said party. While they were sitting in the
room of Yash Pal, both Yash Pal and his wife had gone for dinner at
Mohalla Paddal from where they returned at about 9.30 p.m. It
has come out in evidence that before return of the couple, all the
aforesaid persons had consumed a bottle of liquor. Music was also
being played at a low pitch. Wife of Yash Pal (PW-3) had gone to
bed after having dinner as she was not well. It is also disclosed
from the evidence on record that on the same day i.e. on
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13.1.2000 when the aforesaid party was on, and around 10.30
p.m. the accused knocked at the door of the aforesaid room upon
which it was opened by Sharwan. The respondent entered the
room and asked as to who had called his name. Being so asked
Gagnesh Kaushal (PW-1) stated that nobody had called him and
the respondent was asked to leave the room. While going out of
the room, the respondent further told Gagnesh Kaushal (PW-1) to
make the deceased understand otherwise his head would be
smashed. Saying so, the respondent left the room. Gagnesh
Kaushal (PW-1) claimed to have bolted the room from inside and
they were dancing in the said room when around 12 to 12.30 p.m.
in the midnight of 13th and 14th January, 2000, the deceased Sanjiv
Sain opened the door and went out for urination. It is alleged that
at that time and as soon as he opened the door and was in the
process of going out, he was stabbed by the respondent with a
sharp-edged weapon in chest. According to Gagnesh Kaushal
(PW-1), an attempt was made by him i.e. PW-1 and others to nab
the culprit immediately after the victim was stabbed but the
respondent fled away from the spot. Gagnesh Kaushal (PW-1) at
that stage asked Sharwan to press the chest of the deceased so as
to control the bleeding. He also brought cotton from the nearby
house and gave first aid to the deceased. He also rushed out to
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arrange a three wheeler. When the deceased was taken to
Sanjivan Hospital, Mandi by him, and Sharwan, others were sent
to inform the villagers. As no doctor was available at the aforesaid
private hospital, the deceased was taken to Zonal Hospital, Mandi.
They reached the hospital at about 1.20 a.m. and as soon as they
reached the hospital, the deceased was given treatment by the
doctor but he died around 1.30 a.m.
4. In view of the aforesaid situation, Gagnesh Kaushal (PW-1) the
informant went to the police station and lodged the first
information report which is marked as Annexure P-1/A. After
receipt of the aforesaid first information report, the police
started investigation during the course of which a post-mortem
examination was done on the body of the deceased. The post-
morterm report was exhibited in the trial court and marked as
Exhibit P-8/A. After completion of the investigation, the police
submitted charge-sheet against the respondent and charge was
framed against the respondent. During the course of the trial, a
number of prosecution witnesses were examined. However, the
defence examined none. The respondent was examined under
Section 313 of Cr.PC and after completion of the trial, the trial
court found the petitioner guilty of the offence alleged against
him. After passing an order of conviction, the Additional
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Sessions Judge sentenced the respondent to undergo rigorous
imprisonment for life under Section 302 of IPC and also to pay a
fine of Rs. 5,000/- and in default of payment of the fine to
undergo simple imprisonment for a further period of six
months.
5. The trial court, while rendering the judgement of conviction and
sentence, examined the statements of all the prosecution
witnesses. In the light of the submissions made by the defence
counsel before him, the trial court, however, found that there
was no major discrepancy in the statements of any of the
witnesses so as to cast a shadow of doubt in coming to the
conclusion that any of the three witnesses namely Gagnesh
Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) is not
trustworthy. The trial court found that the statements given by
all the three witnesses corroborate each other on material
particulars and that the flow of their version appears to be quite
natural. Prosecution witnesses Gagnesh Kaushal (PW-1), Sanjiv
Rana (PW-2) and Yash Pal (PW-3) had stated in their
statements that they had seen the accused causing blow in the
chest of the deceased.
6. The aforesaid version of Gagnesh Kaushal (PW-1), Sanjiv Rana
(PW-2) and Yash Pal (PW-3) was challenged by the defence
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counsel and in that view of the matter their deposition was
critically analysed by the learned Additional Sessions Judge.
He, however, found that it was apparently clear that all the
aforesaid three prosecution witnesses were present in the house
of Yash Pal (PW-3). They were, therefore, natural witnesses.
The deceased Sanjiv Sain after opening the door was stepping
out to urinate when he was immediately given a blow on his
chest. At that stage the deceased came running inside and he
named the accused for stabbing him in his chest. Gagnesh
Kaushal (PW-1) has also stated that he along with Sanjiv Rana
(PW-2) and Yash Pal (PW-3) tried to chase the accused but he
ran away from the spot. The aforesaid statement of the
deceased which was relied upon by Gagnesh Kaushal (PW-1),
Sanjiv Rana (PW-2) and Yash Pal (PW-3) was in the nature of a
dying declaration made to them. There is no reason why the
said statement cannot be taken into consideration as a relevant
fact. There is also no reason as to why the deceased would
falsely implicate the accused to save the real assailant. The
trial court also relied upon the discovery of the knife containing
human blood at the instance of the accused from his house.
After detailed appreciation of the evidence on record, the trial
court came to the conclusion that accused had committed the
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offence under Section 302 of IPC and he was sentenced
accordingly.
7. The accused-respondent preferred the appeal as against his
order of conviction and sentence. The aforesaid appeal was
taken up by the Division Bench of the Himachal Pradesh High
Court. The High Court, on appreciation of the evidence on
record, held that there are a number of discrepancies in the
statements of the prosecution witnesses namely Gagnesh
Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) and
that no order of conviction and sentence could be passed on the
basis of such vital discrepancies in the statements. Therefore,
the High Court by its judgment and order dated 08.08.2003
allowed the appeal filed by the respondent and set aside the
order of conviction and sentence passed by the learned
Additional Sessions Judge, Mandi and directed that the
respondent shall be set at liberty forthwith.
8. Aggrieved by the aforesaid order of acquittal of accused-
respondent, the present appeal is filed by the State of Himachal
Pradesh.
9. Mr. J.S. Attri, learned counsel appearing for the appellant,
during the course of his submission before us, minutely took us
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through the evidence on record and pointed out that the
discrepancies on which the High Court had relied upon cannot
be stated to be very vital. He submitted that there was no
reason as to why the aforesaid witnesses as also the deceased
would rope in the accused-respondent as no enmity is proved
between them. It was also submitted by him that the High
Court was not justified in putting undue reliance on absence of
blood on the floor, as stated by Inspector Ram Swaroop
Sharma, Investigating Officer (PW-13), as according to the
witnesses namely Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-
2) and Yash Pal (PW-3), the deceased immediately after being
stabled came back to the room where he was put on the cot.
10.There is no dispute with regard to the fact that the presence of
Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal
(PW-3) in the room was natural and that they could see that
the deceased was stabbed in his chest immediately after he
opened the door upon which he came back and told them about
the incident. He was put on the cot and the place of the wound
was pressed with cottons. In that view of the matter it would
be natural that no blood was found on the floor but the same
was found on the cot and in the clothe that the deceased was
wearing on that day. Therefore, acquittal of the accused-
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respondent on the said ground, in our considered opinion, was
not justified.
11.Yash Pal (PW-3) was the tenant of the room where Gagnesh
Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) were
present at the time of occurrence along with the deceased. It
has come in evidence that about two hours before the incident
the accused came to the place and abused the deceased upon
which he was sent back at 10.30 p.m. i.e. after two hours of
that incident the deceased received the aforesaid injury on his
chest when he was going out of the room by opening the door.
Immediately after receiving the said injury he came back to the
room and told all present including Gagnesh Kaushal (PW-1),
Sanjiv Rana (PW-2) and Yash Pal (PW-3) that he has been
stabbed by the accused. Immediately thereafter he was given
first aid and after arranging for a three wheeler he was taken to
the hospital where he could not be given any treatment and,
therefore, he was taken to the Zonal Hospital, Mandi where he
died. It is also established from the record that immediately
thereafter, the incident was reported to the police.
12.One of the contentions which was raised by the respondent was
about Gagnesh Kaushal (PW-1) first going to the hospital
instead of going to the police station. According to him, the
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said conduct was not natural in as much as the police station is
located in between the hospital and the place of occurrence.
The aforesaid stand of the accused-respondent also found
favour with the High Court. We, however, find no merit in such
contention for the reason that when a person receives an injury
and is still alive it is the natural conduct of the person
accompanying him to see that his life could be saved.
Therefore, the first endeavour is always to take the person to
the hospital immediately so as to provide him medical
treatment and only thereafter report the incident to the police.
Every minute was precious and, therefore, it is natural that the
witnesses accompanying the deceased first tried to take him to
the hospital so as to enable him to get immediate medical
treatment. Such action was definitely in accordance with normal
human conduct and psychology. When their efforts failed and
the deceased died they immediately reported the incident to the
police. In fact, it was a case of quick reporting to the police.
13.The accused also took up a plea of alibi. The trial court
disbelieved the said plea of alibi for which reasons are given in
the judgment of the trial court. According to us, the aforesaid
plea of alibi is without any merit as the presence of the
respondent on the date of the incident at the place of
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occurrence is conclusively proved as Gagnesh Kaushal (PW-1),
Sanjiv Rana (PW-2) and Yash Pal (PW-3) have categorically
stated in their evidence that the accused-respondent had gone
to the room where they were having a party at about 10.30
p.m. Therefore, the aforesaid plea of alibi has no basis at all.
14.There is another submission of the counsel appearing for the
respondent who submitted before us that the order of acquittal
should not be interfered with as no independent witness was
examined. It was submitted by him that the driver of the
three-wheeler and also the brother of the deceased who had
gone to the hospital were not examined. We find no reason as
to why and how the evidence of the aforesaid two persons was
relevant. The brother of the deceased went to the hospital
where the deceased was being given medical treatment and,
therefore, whatever he has heard of the occurrence was from a
third party and was, therefore, hearsay. So far as the driver of
the three-wheeler is concerned, he only carried the deceased to
the hospital and, therefore, his evidence was also not material.
15.Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal
(PW-3) are the natural witnesses who have categorically
deposed about the involvement of the accused in the incident.
The blood stained knife was also recovered at the instance of
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the accused from his house on the basis of the disclosure
statement made by the accused-respondent. When we consider
all the evidence that stand out and when they are co-related it
is established that the accused-respondent had stabbed the
deceased in his chest when he was going out of the room after
opening the door to urinate. As a result of the said injury
received at the end of the accused, the deceased died in the
hospital.
16.Consequently, the order of acquittal passed by the High Court
is bad and illegal. We hereby set aside the said order of
acquittal and restore the order of the trial court. We pass an
order of conviction and sentence against the respondent in
terms of the order passed by the trial court. The bail bond of
the respondent is hereby cancelled. The accused-respondent
shall surrender immediately to serve out the remaining term of
sentence.
17.The appeal is allowed to the aforesaid extent.
………………………..J.
[S.B. Sinha]
…………………………J.
[Dr. Mukundakam Sharma]
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New Delhi,
May 6, 2009
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