{"id":128883,"date":"2009-05-06T00:00:00","date_gmt":"2009-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-h-p-vs-rakesh-kumar-on-6-may-2009"},"modified":"2015-09-15T10:01:39","modified_gmt":"2015-09-15T04:31:39","slug":"state-of-h-p-vs-rakesh-kumar-on-6-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-h-p-vs-rakesh-kumar-on-6-may-2009","title":{"rendered":"State Of H.P vs Rakesh Kumar on 6 May, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">State Of H.P vs Rakesh Kumar on 6 May, 2009<\/div>\n<div class=\"doc_author\">Author: . M Sharma<\/div>\n<div class=\"doc_bench\">Bench: S.B. Sinha, Mukundakam Sharma<\/div>\n<pre>                                                                REPORTABLE\n\n                  IN THE SUPREME COURT OF INDIA\n\n               CRIMINAL APPELLATE JURISDICTION\n\n             CRIMINAL APPEAL No. 1494 OF 2003\n\n\n\nState of Himachal Pradesh                             .....Appellant\n\n                              Versus\n\nRakesh Kumar                                         .....Respondent\n\n\n\n                            JUDGMENT\n<\/pre>\n<p>Dr. Mukundakam Sharma, J.\n<\/p>\n<p> 1. This is an appeal against the judgment and order of acquittal of<\/p>\n<p>    the accused-respondent by the Division Bench of the Himachal<\/p>\n<p>    Pradesh High Court whereby the High Court acquitted the<\/p>\n<p>    accused-respondent after he was found guilty under Section<\/p>\n<p>    302 of the Indian Penal Code (for short the `IPC&#8217;) by the Trial<\/p>\n<p>    Court, Mandi, Himachal Pradesh.      Pursuant to the aforesaid<\/p>\n<p>    order of conviction the trial court sentenced the respondent to<\/p>\n<p>    undergo rigorous imprisonment for life and also to pay a fine of<\/p>\n<p>    Rs. 5,000\/- and in default to undergo simple imprisonment for<\/p>\n<p>    six months.\n<\/p>\n<\/p>\n<p> 2. Being aggrieved by the aforesaid order of conviction and<\/p>\n<p>    sentence, the respondent filed an appeal from jail before the<\/p>\n<p><span class=\"hidden_text\">                        Page 1 of 13<\/span><br \/>\n  Himachal Pradesh High Court which was heard and at the end,<\/p>\n<p>  the aforesaid order of acquittal was passed which is under<\/p>\n<p>  challenge in this appeal.\n<\/p>\n<\/p>\n<p>3. Before we deal with the contentions raised by the counsel<\/p>\n<p>  appearing for the parties, it would be necessary to notice the<\/p>\n<p>  facts which are the basis of the aforesaid criminal case.<\/p>\n<p>     Yash Pal (PW-3) was working as Chowkidar in Income Tax<\/p>\n<p>Office at Mandi.   Sanjiv Rana (PW-2) was working as Clerk in<\/p>\n<p>Agriculture Land Development Bank, Mandi.       Both of them were<\/p>\n<p>related to each other and also hail from the same village. Gagnesh<\/p>\n<p>Kaushal (PW-1) was one of their friends and was running his<\/p>\n<p>painter&#8217;s shop at Paddal.     On 13.1.2000, which was a Lohri day,<\/p>\n<p>the deceased Sanjiv Sen arranged for a party in the house of Yash<\/p>\n<p>Pal (PW-3) and invited Gagnesh Kaushal, Sanjiv Rana and<\/p>\n<p>Sharwan Kumar to the said party. While they were sitting in the<\/p>\n<p>room of Yash Pal, both Yash Pal and his wife had gone for dinner at<\/p>\n<p>Mohalla Paddal from where they returned at about 9.30 p.m.        It<\/p>\n<p>has come out in evidence that before return of the couple, all the<\/p>\n<p>aforesaid persons had consumed a bottle of liquor. Music was also<\/p>\n<p>being played at a low pitch. Wife of Yash Pal (PW-3) had gone to<\/p>\n<p>bed after having dinner as she was not well.    It is also disclosed<\/p>\n<p>from the evidence on record that on the same day i.e. on<\/p>\n<p><span class=\"hidden_text\">                       Page 2 of 13<\/span><br \/>\n13.1.2000 when the aforesaid party was on, and around 10.30<\/p>\n<p>p.m. the accused knocked at the door of the aforesaid room upon<\/p>\n<p>which it was opened by Sharwan.       The respondent entered the<\/p>\n<p>room and asked as to who had called his name. Being so asked<\/p>\n<p>Gagnesh Kaushal (PW-1) stated that nobody had called him and<\/p>\n<p>the respondent was asked to leave the room. While going out of<\/p>\n<p>the room, the respondent further told Gagnesh Kaushal (PW-1) to<\/p>\n<p>make the deceased understand otherwise his head would be<\/p>\n<p>smashed.    Saying so, the respondent left the room.      Gagnesh<\/p>\n<p>Kaushal (PW-1) claimed to have bolted the room from inside and<\/p>\n<p>they were dancing in the said room when around 12 to 12.30 p.m.<\/p>\n<p>in the midnight of 13th and 14th January, 2000, the deceased Sanjiv<\/p>\n<p>Sain opened the door and went out for urination. It is alleged that<\/p>\n<p>at that time and as soon as he opened the door and was in the<\/p>\n<p>process of going out, he was stabbed by the respondent with a<\/p>\n<p>sharp-edged weapon in chest.      According to Gagnesh Kaushal<\/p>\n<p>(PW-1), an attempt was made by him i.e. PW-1 and others to nab<\/p>\n<p>the culprit immediately after the victim was stabbed but the<\/p>\n<p>respondent fled away from the spot. Gagnesh Kaushal (PW-1) at<\/p>\n<p>that stage asked Sharwan to press the chest of the deceased so as<\/p>\n<p>to control the bleeding. He also brought cotton from the nearby<\/p>\n<p>house and gave first aid to the deceased. He also rushed out to<\/p>\n<p><span class=\"hidden_text\">                       Page 3 of 13<\/span><br \/>\narrange a three wheeler.      When the deceased was taken to<\/p>\n<p>Sanjivan Hospital, Mandi by him, and Sharwan, others were sent<\/p>\n<p>to inform the villagers. As no doctor was available at the aforesaid<\/p>\n<p>private hospital, the deceased was taken to Zonal Hospital, Mandi.<\/p>\n<p>They reached the hospital at about 1.20 a.m. and as soon as they<\/p>\n<p>reached the hospital, the deceased was given treatment by the<\/p>\n<p>doctor but he died around 1.30 a.m.<\/p>\n<p>4. In view of the aforesaid situation, Gagnesh Kaushal (PW-1) the<\/p>\n<p>  informant went to the police station and lodged the first<\/p>\n<p>  information report which is marked as Annexure P-1\/A.        After<\/p>\n<p>  receipt of the aforesaid first information report, the police<\/p>\n<p>  started investigation during the course of which a post-mortem<\/p>\n<p>  examination was done on the body of the deceased. The post-<\/p>\n<p>  morterm report was exhibited in the trial court and marked as<\/p>\n<p>  Exhibit P-8\/A. After completion of the investigation, the police<\/p>\n<p>  submitted charge-sheet against the respondent and charge was<\/p>\n<p>  framed against the respondent. During the course of the trial, a<\/p>\n<p>  number of prosecution witnesses were examined. However, the<\/p>\n<p>  defence examined none. The respondent was examined under<\/p>\n<p>  Section 313 of Cr.PC and after completion of the trial, the trial<\/p>\n<p>  court found the petitioner guilty of the offence alleged against<\/p>\n<p>  him.    After passing an order of conviction, the Additional<\/p>\n<p><span class=\"hidden_text\">                       Page 4 of 13<\/span><br \/>\n  Sessions Judge sentenced the respondent to undergo rigorous<\/p>\n<p>  imprisonment for life under Section 302 of IPC and also to pay a<\/p>\n<p>  fine of Rs. 5,000\/- and in default of payment of the fine to<\/p>\n<p>  undergo simple imprisonment for a further period of six<\/p>\n<p>  months.\n<\/p>\n<\/p>\n<p>5. The trial court, while rendering the judgement of conviction and<\/p>\n<p>  sentence, examined the statements of all the prosecution<\/p>\n<p>  witnesses. In the light of the submissions made by the defence<\/p>\n<p>  counsel before him, the trial court, however, found that there<\/p>\n<p>  was no major discrepancy in the statements of any of the<\/p>\n<p>  witnesses so as to cast a shadow of doubt in coming to the<\/p>\n<p>  conclusion that any of the three witnesses namely Gagnesh<\/p>\n<p>  Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) is not<\/p>\n<p>  trustworthy. The trial court found that the statements given by<\/p>\n<p>  all the three witnesses corroborate each other on material<\/p>\n<p>  particulars and that the flow of their version appears to be quite<\/p>\n<p>  natural. Prosecution witnesses Gagnesh Kaushal (PW-1), Sanjiv<\/p>\n<p>  Rana (PW-2) and Yash Pal (PW-3) had stated in their<\/p>\n<p>  statements that they had seen the accused causing blow in the<\/p>\n<p>  chest of the deceased.\n<\/p>\n<\/p>\n<p>6. The aforesaid version of Gagnesh Kaushal (PW-1), Sanjiv Rana<\/p>\n<p>  (PW-2) and Yash Pal (PW-3) was challenged by the defence<\/p>\n<p><span class=\"hidden_text\">                       Page 5 of 13<\/span><br \/>\ncounsel and in that view of the matter their deposition was<\/p>\n<p>critically analysed by the learned Additional Sessions Judge.<\/p>\n<p>He, however, found that it was apparently clear that all the<\/p>\n<p>aforesaid three prosecution witnesses were present in the house<\/p>\n<p>of Yash Pal (PW-3).    They were, therefore, natural witnesses.<\/p>\n<p>The deceased Sanjiv Sain after opening the door was stepping<\/p>\n<p>out to urinate when he was immediately given a blow on his<\/p>\n<p>chest. At that stage the deceased came running inside and he<\/p>\n<p>named the accused for stabbing him in his chest.         Gagnesh<\/p>\n<p>Kaushal (PW-1) has also stated that he along with Sanjiv Rana<\/p>\n<p>(PW-2) and Yash Pal (PW-3) tried to chase the accused but he<\/p>\n<p>ran away from the spot.        The aforesaid statement of the<\/p>\n<p>deceased which was relied upon by Gagnesh Kaushal (PW-1),<\/p>\n<p>Sanjiv Rana (PW-2) and Yash Pal (PW-3) was in the nature of a<\/p>\n<p>dying declaration made to them.     There is no reason why the<\/p>\n<p>said statement cannot be taken into consideration as a relevant<\/p>\n<p>fact.   There is also no reason as to why the deceased would<\/p>\n<p>falsely implicate the accused to save the real assailant.     The<\/p>\n<p>trial court also relied upon the discovery of the knife containing<\/p>\n<p>human blood at the instance of the accused from his house.<\/p>\n<p>After detailed appreciation of the evidence on record, the trial<\/p>\n<p>court came to the conclusion that accused had committed the<\/p>\n<p><span class=\"hidden_text\">                    Page 6 of 13<\/span><br \/>\n  offence under Section 302 of IPC and he was sentenced<\/p>\n<p>  accordingly.\n<\/p>\n<\/p>\n<p>7. The accused-respondent preferred the appeal as against his<\/p>\n<p>  order of conviction and sentence.        The aforesaid appeal was<\/p>\n<p>  taken up by the Division Bench of the Himachal Pradesh High<\/p>\n<p>  Court.     The High Court, on appreciation of the evidence on<\/p>\n<p>  record, held that there are a number of discrepancies in the<\/p>\n<p>  statements of the prosecution witnesses namely Gagnesh<\/p>\n<p>  Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) and<\/p>\n<p>  that no order of conviction and sentence could be passed on the<\/p>\n<p>  basis of such vital discrepancies in the statements. Therefore,<\/p>\n<p>  the High Court by its judgment and order dated 08.08.2003<\/p>\n<p>  allowed the appeal filed by the respondent and set aside the<\/p>\n<p>  order of conviction and sentence passed by the learned<\/p>\n<p>  Additional   Sessions   Judge,   Mandi    and   directed   that   the<\/p>\n<p>  respondent shall be set at liberty forthwith.<\/p>\n<p>8. Aggrieved by the aforesaid order of acquittal of accused-<\/p>\n<p>  respondent, the present appeal is filed by the State of Himachal<\/p>\n<p>  Pradesh.\n<\/p>\n<\/p>\n<p>9. Mr. J.S. Attri, learned counsel appearing for the appellant,<\/p>\n<p>  during the course of his submission before us, minutely took us<\/p>\n<p><span class=\"hidden_text\">                       Page 7 of 13<\/span><br \/>\n  through the evidence on record and pointed out that the<\/p>\n<p>  discrepancies on which the High Court had relied upon cannot<\/p>\n<p>  be stated to be very vital.    He submitted that there was no<\/p>\n<p>  reason as to why the aforesaid witnesses as also the deceased<\/p>\n<p>  would rope in the accused-respondent as no enmity is proved<\/p>\n<p>  between them.     It was also submitted by him that the High<\/p>\n<p>  Court was not justified in putting undue reliance on absence of<\/p>\n<p>  blood on the floor, as stated by Inspector Ram Swaroop<\/p>\n<p>  Sharma, Investigating Officer (PW-13), as according to the<\/p>\n<p>  witnesses namely Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-<\/p>\n<p>  2) and Yash Pal (PW-3), the deceased immediately after being<\/p>\n<p>  stabled came back to the room where he was put on the cot.<\/p>\n<p>10.There is no dispute with regard to the fact that the presence of<\/p>\n<p>  Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal<\/p>\n<p>  (PW-3) in the room was natural and that they could see that<\/p>\n<p>  the deceased was stabbed in his chest immediately after he<\/p>\n<p>  opened the door upon which he came back and told them about<\/p>\n<p>  the incident. He was put on the cot and the place of the wound<\/p>\n<p>  was pressed with cottons. In that view of the matter it would<\/p>\n<p>  be natural that no blood was found on the floor but the same<\/p>\n<p>  was found on the cot and in the clothe that the deceased was<\/p>\n<p>  wearing on that day.      Therefore, acquittal of the accused-<\/p>\n<p><span class=\"hidden_text\">                       Page 8 of 13<\/span><br \/>\n  respondent on the said ground, in our considered opinion, was<\/p>\n<p>  not justified.\n<\/p>\n<\/p>\n<p>11.Yash Pal (PW-3) was the tenant of the room where Gagnesh<\/p>\n<p>  Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) were<\/p>\n<p>  present at the time of occurrence along with the deceased. It<\/p>\n<p>  has come in evidence that about two hours before the incident<\/p>\n<p>  the accused came to the place and abused the deceased upon<\/p>\n<p>  which he was sent back at 10.30 p.m. i.e. after two hours of<\/p>\n<p>  that incident the deceased received the aforesaid injury on his<\/p>\n<p>  chest when he was going out of the room by opening the door.<\/p>\n<p>  Immediately after receiving the said injury he came back to the<\/p>\n<p>  room and told all present including Gagnesh Kaushal (PW-1),<\/p>\n<p>  Sanjiv Rana (PW-2) and Yash Pal (PW-3) that he has been<\/p>\n<p>  stabbed by the accused. Immediately thereafter he was given<\/p>\n<p>  first aid and after arranging for a three wheeler he was taken to<\/p>\n<p>  the hospital where he could not be given any treatment and,<\/p>\n<p>  therefore, he was taken to the Zonal Hospital, Mandi where he<\/p>\n<p>  died.   It is also established from the record that immediately<\/p>\n<p>  thereafter, the incident was reported to the police.<\/p>\n<p>12.One of the contentions which was raised by the respondent was<\/p>\n<p>  about Gagnesh Kaushal (PW-1) first going to the hospital<\/p>\n<p>  instead of going to the police station.   According to him, the<\/p>\n<p><span class=\"hidden_text\">                      Page 9 of 13<\/span><br \/>\n  said conduct was not natural in as much as the police station is<\/p>\n<p>  located in between the hospital and the place of occurrence.<\/p>\n<p>  The aforesaid stand of the accused-respondent also found<\/p>\n<p>  favour with the High Court. We, however, find no merit in such<\/p>\n<p>  contention for the reason that when a person receives an injury<\/p>\n<p>  and is still alive it is the natural conduct of the person<\/p>\n<p>  accompanying him to see that his life could be saved.<\/p>\n<p>  Therefore, the first endeavour is always to take the person to<\/p>\n<p>  the   hospital   immediately   so   as   to   provide   him   medical<\/p>\n<p>  treatment and only thereafter report the incident to the police.<\/p>\n<p>  Every minute was precious and, therefore, it is natural that the<\/p>\n<p>  witnesses accompanying the deceased first tried to take him to<\/p>\n<p>  the hospital so as to enable him to get immediate medical<\/p>\n<p>  treatment. Such action was definitely in accordance with normal<\/p>\n<p>  human conduct and psychology. When their efforts failed and<\/p>\n<p>  the deceased died they immediately reported the incident to the<\/p>\n<p>  police. In fact, it was a case of quick reporting to the police.<\/p>\n<p>13.The accused also took up a plea of alibi.          The trial court<\/p>\n<p>  disbelieved the said plea of alibi for which reasons are given in<\/p>\n<p>  the judgment of the trial court. According to us, the aforesaid<\/p>\n<p>  plea of alibi is without any merit as the presence of the<\/p>\n<p>  respondent on the date of the incident at the place of<\/p>\n<p><span class=\"hidden_text\">                       Page 10 of 13<\/span><br \/>\n  occurrence is conclusively proved as Gagnesh Kaushal (PW-1),<\/p>\n<p>  Sanjiv Rana (PW-2) and Yash Pal (PW-3) have categorically<\/p>\n<p>  stated in their evidence that the accused-respondent had gone<\/p>\n<p>  to the room where they were having a party at about 10.30<\/p>\n<p>  p.m. Therefore, the aforesaid plea of alibi has no basis at all.<\/p>\n<p>14.There is another submission of the counsel appearing for the<\/p>\n<p>  respondent who submitted before us that the order of acquittal<\/p>\n<p>  should not be interfered with as no independent witness was<\/p>\n<p>  examined.    It was submitted by him that the driver of the<\/p>\n<p>  three-wheeler and also the brother of the deceased who had<\/p>\n<p>  gone to the hospital were not examined. We find no reason as<\/p>\n<p>  to why and how the evidence of the aforesaid two persons was<\/p>\n<p>  relevant.   The brother of the deceased went to the hospital<\/p>\n<p>  where the deceased was being given medical treatment and,<\/p>\n<p>  therefore, whatever he has heard of the occurrence was from a<\/p>\n<p>  third party and was, therefore, hearsay. So far as the driver of<\/p>\n<p>  the three-wheeler is concerned, he only carried the deceased to<\/p>\n<p>  the hospital and, therefore, his evidence was also not material.<\/p>\n<p>15.Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal<\/p>\n<p>  (PW-3) are the natural witnesses who have categorically<\/p>\n<p>  deposed about the involvement of the accused in the incident.<\/p>\n<p>  The blood stained knife was also recovered at the instance of<\/p>\n<p><span class=\"hidden_text\">                      Page 11 of 13<\/span><br \/>\n  the accused from his house on the basis of the disclosure<\/p>\n<p>  statement made by the accused-respondent. When we consider<\/p>\n<p>  all the evidence that stand out and when they are co-related it<\/p>\n<p>  is established that the accused-respondent had stabbed the<\/p>\n<p>  deceased in his chest when he was going out of the room after<\/p>\n<p>  opening the door to urinate.     As a result of the said injury<\/p>\n<p>  received at the end of the accused, the deceased died in the<\/p>\n<p>  hospital.\n<\/p>\n<\/p>\n<p>16.Consequently, the order of acquittal passed by the High Court<\/p>\n<p>  is bad and illegal.    We hereby set aside the said order of<\/p>\n<p>  acquittal and restore the order of the trial court. We pass an<\/p>\n<p>  order of conviction and sentence against the respondent in<\/p>\n<p>  terms of the order passed by the trial court. The bail bond of<\/p>\n<p>  the respondent is hereby cancelled. The accused-respondent<\/p>\n<p>  shall surrender immediately to serve out the remaining term of<\/p>\n<p>  sentence.\n<\/p>\n<\/p>\n<p>17.The appeal is allowed to the aforesaid extent.<\/p>\n<p>                                                    &#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;..J.\n<\/p>\n<p>                                                           [S.B. Sinha]<\/p>\n<p>                                                    &#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;J.\n<\/p>\n<p>                                        [Dr. Mukundakam Sharma]<\/p>\n<p><span class=\"hidden_text\">                        Page 12 of 13<\/span><br \/>\nNew Delhi,<br \/>\nMay 6, 2009<\/p>\n<p><span class=\"hidden_text\">              Page 13 of 13<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India State Of H.P vs Rakesh Kumar on 6 May, 2009 Author: . M Sharma Bench: S.B. Sinha, Mukundakam Sharma REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1494 OF 2003 State of Himachal Pradesh &#8230;..Appellant Versus Rakesh Kumar &#8230;..Respondent JUDGMENT Dr. Mukundakam Sharma, J. 1. This [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-128883","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State Of H.P vs Rakesh Kumar on 6 May, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-h-p-vs-rakesh-kumar-on-6-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of H.P vs Rakesh Kumar on 6 May, 2009 - Free Judgements of Supreme Court &amp; 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