IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1400 of 2001 (Old No. 71 of 1998) Rakesh alias Bunty, S/o Ram Chandra, R/o Village Gandhigram, P.S. Kotwali, District Dehradun. …………………..Appellant. Versus State ………………Respondent. Ms. Geeta Parihar, Advocate for the appellant. Mr. Amit Bhatt, Additional Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 06.12.1997 / 12.12.1997, passed by III Additional Sessions Judge, Dehradun, in Sessions Trial No. 150 of 1995, whereby accused / appellant Rakesh alias Bunty is convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced to imprisonment for life. 2 (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that on 10.02.1995 (a day before the incident) accused / appellant Rakesh alias Bunty, resident of Gandhigram, Dehradun, had some altercation with Tarun Luthra (deceased). On 11.02.1995, complainant Kamal Luthra (P.W.1) along with his younger brother Tarun Luthra (deceased) returning back from their maternal grand mother’s house in Gandhigram and when they reached near the shop of Mangal Dass, at about 2.15 p.m., accused / appellant Rakesh alias Bunty along with co-accused Anees (he has been acquitted of the charge by the trial court) caught Tarun Luthra. Thereafter, accused Rakesh alias Bunty with intention to kill him (deceased), caused fatal injuries with a knife. He (Rakesh alias Bunty) struck blows in the abdomen and back of the deceased (Tarun Luthra). Meanwhile, Kamal Luthra (complainant / P.W.1) raised alarm, on which Constables Ravindra Kumar (P.W.4), Narendra Kumar (P.W.5) and Sanjay alias Happy (P.W.2) along with others reached there. They tried to over power the two accused, but accused Anees succeeded in running away. However, when the accused / appellant Rakesh alias Bunty after throwing the knife started running, he was chased and arrested on the spot. A First Information Report (Ext.A-1) was lodged by Kamal Luthra (P.W.1) with Police Station Kotwali, Dehradun, where the apprehended accused / appellant Rakesh alias Bunty was also taken and handed over to the 3 Police. Meanwhile, injured Tarun Luthra was taken by Sanjay alias Happy (P.W.2) along with one Raj Kumar to Doon Hospital, where he was declared dead. The Police registered Crime No. 136 of 1995 at Police Station Kotwali, initially relating to offences punishable under Sections 324, 307, 302 I.P.C., but converted the same to one punishable under Section 302 I.P.C., after receiving the information that the injured has died on way to the Hospital. The investigation was taken up by Sub Inspector Narendra Singh Rana (P.W.11) and later on completed by Sub Inspector Sambhu Singh. The Police took the dead body of the deceased in their possession and prepared inquest report (Ext.A-3) in the presence of P.W.7 Dharam Pal and other witnesses. Sketch of the dead body (Ext.A-15), letter to the Chief Medical Officer (Ext.A-16) were also prepared, after preparation of the inquest report and dead body was sent in a sealed condition for postmortem examination through Head Constable Teeka Ram (P.W.10) and one Home Guard. The postmortem examination was conducted on 12.02.1995 by Dr. B.K. Endlay (P.W.9), who prepared the postmortem examination report (Ext.A-6). He opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. Meanwhile, the knife, which was thrown by the accused just before he was chased and arrested, was recovered on pointing out of the accused / appellant and a recovery memo (Ext.A-2) was prepared in the presence of P.W.6 Ramesh Verma and others. After interrogation of the witnesses and on completion 4 of the investigation the Investigating Officer submitted the charge sheet (Ext.A-5) to the Magistrate concerned. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial of accused / appellant Rakesh alias Bunty and Anees. Learned Additional Sessions Judge, to whom the sessions case is transferred, on 13.07.1995, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against both the accused Rakesh and Anees. The two pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Kamal Luthra, complainant and eyewitness, P.W.2 Sanjay alias Happy, another eyewitness, P.W.3. Jitendra Kumar (declared hostile), P.W.4 Constable Ravindra Kumar, who chased and arrested the accused Rakesh on the spot, P.W.5 Constable Narendra Kumar, who also helped in chasing and arresting the accused Rakesh at the spot, P.W.6 Ramesh Verma, in whose presence knife used in the crime was recovered on pointing out of accused Rakesh, P.W.7 Dharam Pal, who witnessed the preparation of inquest report by the Police, of the dead body of Tarun Luthra (deceased), P.W.8 Sambhu Singh, who completed the investigation, P.W.9 Dr. B.K. Endlay, who conducted the postmortem examination on the dead body of Tarun Luthra, P.W.10 Head Constable Teeka Ram, who took the dead body in sealed condition for postmortem examination and 5 P.W.11 Sub Inspector Narendra Singh Rana, who investigated the crime before being handed over to P.W.8 Sambhu Singh. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., to which they alleged the same to be false. The accused / appellant and co-accused claimed themselves to be innocent. However, no evidence was given in defence. After hearing the parties the trial court found that charge of offence punishable under Section 302 I.P.C. stands proved against accused / appellant Rakesh and convicted him accordingly. However, as against co-accused Anees the trial court opined that charge of offence punishable under Section 302 read with Section 34 I.P.C. is not proved against him beyond reasonable doubt and said accused was acquitted on 06.12.1997. After hearing the parties on sentence the trial court sentenced convict Rakesh alias Bunty to imprisonment for life under Section 302 I.P.C.. Aggrieved by said judgment and order dated 06.12.1997 (by which the conviction is recorded against Rakesh alias Bunty) / 12.12.1997 (by which the sentence is awarded against the convict), this appeal was filed by the convict Rakesh alias Bunty on 15.01.1998 before Allahabad High Court, where it was admitted on 16.01.1998. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), for its disposal. (5) Before further discussions, we think it just and proper to mention the ante mortem injuries which were found on the dead body of the deceased (Tarun Luthra) 6 by Dr. B.K. Endlay, who prepared autopsy report (Ext.A-6). The ante mortem injuries recorded in said document are reproduced below:- (i) Incised wound 3cm x 1cm x muscle deep on left upper arm 6cm above left elbow joint. (ii) Incised wound 4cm x 2cm x muscle deep on back of left forearm 2.5 cm below the left elbow joint. (iii) Abrasion 2cm x ½ cm. 8cm above injury no. (i). (iv) Incised wound 2-1/2cm x 1-1/2cm on middle and inner side of left upper arm. (v) Incised wound 1cm x 1/2 cm x muscle deep on front of left forearm, 4cm below left elbow joint. (vi) Incised wound 1cm x 1cm x cavity deep left side chest 4cm above left nipple. (vii) Incised wound .5cm x .5cm x cavity deep 11cm below left nipple. (viii) Incised wound .5cm x .5cm x cavity deep front 7 of left side chest 2cm above from front nitch. (ix) Incised wound 3cm x 2cm x cavity deep on left side abdomen. Intestinal loops coming out 3cm away from umblicus. (x) Incised wound 1-1/2cm x 1cm x cavity deep left side lower abdomen, 8cm below injury no. 9 (xi) Incised wound 1cm x 1cm x cavity deep left side back, 7cm above left hip joint. (xii) Incised wound 1cm x .5cm on back of head 10cm away from left ear. The Medical Officer opined that the cause of death was shock and haemorrhage as a result of ante mortem injuries. The above injuries shown in the postmortem report along with the statement of P.W.9 Dr. B.K. Endlay establishes on record that Tarun Luthra has died homicidal death on 11.02.1995. Now the question before us is whether accused / appellant Rakesh alias Bunty committed murder of Tarun Luthra or not. (6) P.W.1 Kamal Luthra, brother of the deceased has stated on oath that on 11.02.1995 at about 2.00-2.15 8 p.m. he along with his younger brother Tarun Luthra (deceased) were coming from their maternal grand mother’s house from village Gandhigram. The witness has further stated that when the two reached near grocery shop of Mangal Dass, they saw Rakesh alias Bunty was standing there along with Anees. P.W.1 Kamal Luthra further narrated the prosecution story by saying that Rakesh alias Bunty was armed with Khanjar (a sharp edged weapon like knife). As soon as the two brothers reached near the two accused, the accused Anees caught hold of Tarun Luthra and accused Rakesh alias Bunty started assaulting him with a knife he was possessing. On this, according to the witness he raised alarm. On hearing alarm, Constable Ravindra Kumar (P.W.4) and Constable Narendra Kumar (P.W.5) and witness Sanjay alias Happy (P.W.2) reached at the spot. P.W.1 Kamal Luthra has further stated that accused Anees succeeded in fleeing from the place of incident but when accused / appellant Rakesh alias Bunty after throwing the knife started running he was chased and caught by the aforesaid two Policemen. P.W.1 Kamal Luthra has further stated that Sanjay alias Happy (P.W.2) took immediately Tarun Luthra with the help of Raj Kumar to Doon Hospital while he (P.W.1 Kamal Luthra) scribed and lodged the First Information Report (Ext.A- 1) at the Police Station. (7) The statement of the above eyewitness P.W.1 Kamal Luthra gets corroborated from the statement of P.W.2 Sanjay alias Happy, who has stated that on the 9 day of incident on hearing shouts he reached at the spot and took injured Tarun Luthra to Doon Hospital where he was declared brought dead. (8) The spot arrest of accused / appellant Rakesh alias Bunty as stated by P.W.1 Kamal Luthra gets corroborated from the statement of P.W.4 Constable Ravindra Kumar and P.W.5 Constable Narendra Kumar who have stated that on 11.02.1995, they were on patrol duty when at about 2.15 p.m. they heard shouts and reached at the spot where accused Rakesh alias Bunty was assaulting with knife a person (Tarun Luthra) on which they tried to intercept the accused Rakesh and Anees, but Anees succeeded in running away while Rakesh was arrested on the spot. (9) Having reassessed the evidence on record as above, we concur with the trial court that the prosecution has successfully proved that the Rakesh alias Bunty (present appellant) has committed murder of Tarun Luthra in a day light incident and he was arrested at the spot, after the incident. (10) On behalf of appellant it is argued that no motive for commission of crime is proved on the record as such the prosecution story appears to be doubtful. However, we do not find any substance in the argument for the reason that where there is a direct eyewitness account of the incident, particularly when there is spot arrest of the accused, even if the motive is not proved, it does not create any reasonable doubt in 10 the prosecution story. Apart from this, it has come on the record in the cross examination of witnesses P.W.1 Kamal Luthra and P.W.2 Sanjay alias Happy that the accused / appellant used to purchase lottery ticket from the deceased and there was some dispute between them relating to non payment of prize to the accused / appellant. (11) Ms. Geeta Parihar, learned counsel for the appellant further submitted that P.W.1 Kamal Luthra is brother of deceased Tarun Luthra and as such his testimony cannot be relied, as he is an interested witness. Having read the statement of Kamal Luthra P.W.1 and the testimony of other witnesses we do not find any force in the submission of learned counsel for the appellant for the reason that in a case like the present one in which the brother of the complainant has been murdered brutally, the complainant who is brother of the deceased would not lie to implicate someone falsely leaving real culprit. Apart from this, the First Information Report in the case is a prompt one. The arrest of the accused is on the spot by the two Constables who are not related to the complainant. Not only this the testimony of P.W.2 Sanjay alias Happy further corroborates the prosecution story as narrated by P.W.1 Kamal Luthra, therefore, we do not see any reason to disbelieve the statement of the complainant. (12) Lastly, it is contended on behalf of appellant that place of incident as suggested by the prosecution appears to be doubtful as no blood stained soil is taken 11 by the Investigating Officer from the place where incident is said to have occurred. We are of the view that it is not a case of circumstantial evidence as such mere not taking blood stained soil from the place of incident does not create any reasonable doubt in the prosecution story. Otherwise also since the place of incident is a road on which the public was passing through as such it cannot be said that the blood stains remained at the spot when the investigation was taken up by the Investigating Officer. For the reasons as discussed above, we do not find any sufficient reason to interfere with the impugned judgment and order passed by the trial court convicting the accused / appellant Rakesh alias Bunty under Section 302 I.P.C. and sentencing him to imprisonment for life. Therefore, the appeal is dismissed. The appellant is in jail. Registry is directed to send a copy of this judgment to the appellant through the concerned Superintendent of Jail. Lower court record be send back to the trial court. (B.S. Verma, J.) (Prafulla C. Pant, J.) 10.09.2008 NS 12