IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 394 of 2001 Harish Kukreti …Appellant Versus State …Respondent Mr. R.P. Kotiyal, Advocate for the appellant Mr. H.C. Pujari, A.G.A. for State/respondent Dated: 14-10-2009 Hon’ble B.C. Kandpal, J. Hon'ble B.S. Verma, J. [Per: Hon’ble B.C. Kandpal, J. (Oral)] This Criminal Appeal, under Section 374(2) Cr.P.C., has been preferred by the convict/appellant against the judgment and order dated 27.8.1997 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.15 of 1994, State vs. Harish Kukreti @ Tillu convicting the appellant under Section 302 I.P.C. and sentencing him to undergo rigorous imprisonment for life. 2- The prosecution story, in brief, is that on the date of occurrence i.e. on 2.12.1992 deceased Ajai had to participate in the marriage function of son of Rajendra Singh Negi in the neighbourhood. There was some quarrel between him and some other boys. At about 9.00 p.m. parents of Ajai were informed that somebody has injured Ajai with knife. Hearing this news, they rushed on the spot. When they reached the spot, Ajai was alive and told his parents before large number of persons that he was inflicted knife injuries by one Tillu @ Harish Kukreti, who is a resident of Maanpur, near Pencil Factory. At the time when Ajai had made this 2 statement, he was fully conscious. He was rushed to the hospital in precarious condition and died inspite of best efforts. The First Information Report of this occurrence was lodged on the same day at about 11.00 p.m. by Bachan Singh, father of the deceased, on the basis of which case was registered against the accused Harish Kukreti alias Tillu. The investigation was entrusted to S.I., P.S. Manola, who immediately proceeded on the spot, prepared site map. The body was taken into custody, Panchayatnama was done and thereafter it was sent for post mortem examination. 3- The Investigating Officer recorded the statement of the witnesses under Section 161 of the Cr.P.C., completed all other formalities and after completing the investigation, submitted the charge sheet against the accused/appellant under Section 302 I.P.C. to the court of Magistrate, who in turn, committed the case to the court of Sessions Judge for trial of the accused/appellant. 4- In the Sessions Court charge under Section 302 I.P.C. was framed against the accused- appellant. The accused pleaded not guilty and claimed to be tried. 5- The documentary evidence produced by the prosecution side are Chick Report, its entry in the G.D., extract of G.D., site map, medical report, post mortem report etc. and they have been marked Exts.Ka-2 to Ka-13. 6- The prosecution in support of its case and the charge which has been framed against the accused, 3 has examined seven witnesses. Out of them P.W. 1 Bachan Singh is the father of the deceased and P.W. 4 is the mother of the deceased. They only have supported the case of the prosecution. While in the witness box, they have stated that on the day of occurrence their son Ajai had gone to participate in the marriage of son of Rajendra Singh Negi, who resides in the neighbourhood. At about 9.00 p.m. they were informed that their son was lying in precarious condition. He has been assaulted by knife. They immediately rushed on the spot and saw their son in serious condition. A large crowd had assembled there and before them Ajai had told them that the knife blows were inflicted by Tillu alias Harish Kukreti. He was immediately rushed to the hospital, but on account of injuries, he died. F.I.R. Ext. Ka.1 was lodged by Bachan Singh in the Police. Only these two witnesses have supported the case of the prosecution. 7- The other witnesses, who have been produced by the prosecution i.e. PW-2 Manoj Kumar, PW-3 Vijai Kumar, PW-5 Yogamber, PW-6 Prem Singh and PW-7 Shiv Singh have not supported the case of the prosecution. It was said by the prosecution that they were present at the time when dying declaration was given by the victim. None of them have supported the case of the prosecution, hence they were declared hostile. 8- The accused did not adduce any oral or documentary evidence in his defence. 9- The trial court after having considered the entire material evidence available on record and 4 hearing learned counsel for the parties convicted the accused Harish Kukreti alias Tillu under Section 302 I.P.C. and sentenced him to imprisonment for life, vide judgment and order dated 27.08.1997. 10- Feeling aggrieved by the aforesaid impugned judgment and order, the convict/appellant has preferred the present appeal which has been placed before us for final disposal. 11- Heard Sri R.P. Kotiyal, learned counsel for the appellant, Sri H.C. Pujari, learned A.G.A. for the State/respondent and perused the record. 12- At the very outset it is pertinent to mention here that in this case all the independent witnesses namely PW-2 Manoj Kumar, PW-3 Vijai Kumar, PW- 5 Yogamber, PW-6 Prem Singh and PW-7 Shiv Singh have turned hostile and they have not supported the prosecution case from any corner. The remaining two witnesses are mother and father of the deceased and the prosecution has tried to build the case against the convict/appellant on the basis of alleged dying declaration made by the deceased before his father and mother namely Bachan Singh (PW-1) and Kamla Devi (PW-4). The statement of Bachan Singh, who has been produced as PW-1 before the trial court, indicates that when he reached at the spot, then he saw that his son was lying unconscious on the road and his son disclosed this fact that he was assaulted by Harish Kukreti alias Tillu with knife. The deposition of this witness further indicates that his son Ajai went to attend a marriage in the night of 2.12.1992 and about 9.00 5 p.m. a boy came to him and informed that Ajai was assaulted by some unknown assailant with knife and hearing this news he rushed to the spot and found that his son was lying in an injured condition on the road. The deposition of this witness further reveals that his son also told other persons who met in the way while being taken to the hospital that he was assaulted by Harish Kukreti alias Tillu. In the cross-examination this witness has stated that when he reached at the spot, about 20-25 persons were assembled there, out of them Shiv Singh Rana and Prem Singh Bisht were also there. His statement further indicates that deceased Ajai had also disclosed this fact before the aforesaid persons that he was assaulted by Harish Kukreti alias Tillu with knife. This witness has further deposed that in the hospital also deceased Ajai disclosed this fact that he was assaulted by Harish Kukreti alias Tillu to those persons who reached in the hospital. 13- It is also pertinent to mention here that Prem Singh Bisht and Shiv Singh Rana are those persons who assembled at the spot as per the deposition of PW-1 Bachan Singh complainant, but Prem Singh Bisht PW-6 and Shiv Singh Rana PW-7 have not supported the prosecution case in their deposition before the trial court. PW-6 Prem Singh is the person who scribed the First Information Report and he has deposed that he scribed the F.I.R. on the saying of Bachan Singh in the next morning. However, this witness has been declared hostile as he has stated that deceased Ajai did not state this fact before him that he was assaulted by any particular person. Thus, the statement of this witness makes the picture crystal clear firstly on the 6 count that Ajai did not disclose this fact that he was assaulted by Harish Kukreti alias Tillu in the presence of this witness and secondly that as per his deposition the report was scribed by him in the next morning, while the prosecution case is that report was lodged at the police station in the night on the same day at 11.00 p.m. This aspect of the prosecution case gives a serious jolt and casts a shadow of doubt on the genuineness of the prosecution case itself. Another witness Shiv Singh Rana PW-7 is also that person before whom Ajai deceased made a statement that he was assaulted by Harish Kukreti alias Tillu with knife. But, this witness has also not supported the prosecution case and he has also been declared hostile. Other three witnesses PW-2 Manoj Kumar, PW-3 Vijay Kumar and PW-5 Yogamber produced by the prosecution being independent witnesses have also turned hostile and they have not supported the prosecution case in any manner. 14- Now, the statement of Bachan Singh, father of the deceased and Kamla Devi, mother of the deceased, remains on record and we have to assess that as to whether on the basis of the statement of these two witnesses the conviction and sentence imposed against the appellant can sustain or not. 15- As far as statement of Bachan Singh is concerned, he has categorically stated that he received the information with regard to assault of Ajai, his son, at about 9.00 p.m. and he immediately rushed to the spot and saw that his son was lying in an injured condition at the spot. This witness has stated that his son informed him 7 that he was assaulted by Harish Kukreti alias Tillu with knife. It is an important aspect of the matter that this witness took his son to the hospital where he died at 10.20 p.m. only thereafter the F.I.R. was lodged by this witness at 11.00 p.m., but this important fact is omitted in the First Information Report and this witness has admitted in his cross- examination that he has not mentioned this fact in the First Information Report. This witness has also not mentioned this fact in the F.I.R. that who were the other persons accompanied by Bachan Singh complainant to the hospital with the injured Ajai. It is worthy to mention here that Bachan Singh father of the deceased did not disclose this fact that his son informed him with regard to assault made by Harish Kukreti alias Tillu with knife, before the Investigating Officer who recorded the statement under Section 161 Cr.P.C. The same situation is with PW-4 Kamla Devi, mother of the deceased. She has although stated in her deposition before the court that her son given the statement before her that he was assaulted by Harish Kukreti alias Tillu with knife, but she did not state this thing before the Investigating Officer in her statement under Section 161 Cr.P.C. It is therefore quite clear that this story of alleged dying declaration is a result of afterthought and has been introduced by the prosecution for the first time before the court. 16- It is further to add that in this case that the doctor who medically examined the injured Ajai has not been examined by prosecution. The prosecution knew it that doctor is a material evidence who could have disclosed this aspect before the court that as to what was the condition of the injured when he 8 was taken to the hospital. There is nothing on record brought by the prosecution which may suggest that the injured was in a condition to speak or not when he was brought to the hospital. Further, the Investigating Officer has also not been produced by the prosecution who could have also disclosed that as to whether he collected any evidence to this effect that the deceased was in a position to speak anything before his death or not. Therefore, non-production of these two material witnesses gives a serious jolt to the prosecution case and we are of the definite view that the prosecution has utterly failed in establishing the guilt against the convict/appellant Harish Kukreti alias Tillu and the conviction based solely on the alleged dying declaration of the deceased Ajai appears to be either tainted or fabricated by the prosecution side. No reliance could be attached on the basis of this dying declaration which does not find any corroboration by the evidence adduced by the prosecution. 17- For the reasons stated above, we are of the considered opinion that conviction and sentence awarded by the trial court against appellant Harish Kukreti alias Tillu, is not sustainable in the eye of law. 18- Accordingly, appeal is allowed. The impugned judgment and order dated 27.8.1997 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.15 of 1994, State vs. Harish Kukreti @ Tillu, thereby convicting and sentencing appellant Harish Kukreti alias Tillu, under Section 302 I.P.C., is set aside. The convict/appellant is therefore acquitted 9 of the charge under Section 302 I.P.C. levelled against him by the trial court. 19- The accused/appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. (B.S. Verma, J.) (B.C. Kandpal, J.) 14-10-2009 SP