Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 400 of 2003 Dated of Decision: 21 .05.2010 Lalit Puri …Appellant Versus State of Uttaranchal …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. Sandeep Tandon, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Accused-Lalit Puri stood trial for the offences punishable under Sections 302, 323, 504 of the Indian Penal Code, 1860 (in short I.P.C.) and Section 25/4 of the Arms Act. He has been convicted under Section 302 of the I.P.C. by the judgment and order dated 03.12.2003 passed by the Additional Sessions Judge/F.T.C. No. III, Dehradun in Sessions Trial No. 85 of 2003 and has been sentenced to undergo life imprisonment and a fine of Rs. 5,000/-. In default of payment of fine he has further been ordered to undergo one-year rigorous imprisonment. He has also been convicted for the offence punishable under Section 25/4 of the Arms Act and sentenced to one year rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine, he has further been ordered to undergo six months’ simple imprisonment. Both the sentences have been ordered to run concurrently. However, the accused-appellant has been acquitted of the charges under Sections 323 & 504 of the I.P.C. The criminal law was set in motion on the statement of Anoop Thapa, brother-in-law of Rajendra Kukreti (deceased). 2 He submitted a written complaint (Ex. Ka-1) before the S.H.O., police station Claimant Town, Dehradun stating therein that on 15th May 2003, he went to meet his brother-in-law Rajendra Kukreti, who was working in the shop of country made liquor at Shashtri Nagar Canteen near legislative assembly. At that time injured-Manoj (PW-2) was also present. Around 6:30 p.m. accused-Lalit Puri came inside the canteen and took out a knife from the side of his waist while hurling abuses. He caused several injuries on the person of Rejendra Kukreti (deceased). Complainant-Anoop Thapa and Manoj tried to intervene and in the process Manoj also received injuries. Thereafter accused- Lalit Puri pushing away the complainant and Manoj, ran out of the canteen. On raising alarm by both of them, two police officials, namely, constables Dalip Singh and Ashok Rana reached the spot. With their help injured was removed to Doon Hospital. Rajendra Kukreti succumbed to his injuries on the way. On the basis of the written complaint, Chick F.I.R. (Ex. Ka-5) was recorded by Mohan Singh (PW-5) in police station Claimant Town at 8:45 p.m., which was at a distance of 13 kilometers. General Diary report in this respect is Ex. Ka-6. The investigation was conducted by S.O. Chandan Singh Bisht (PW-6). The Investigating Officer lifted bloodstained earth and simple earth from the place of occurrence vide memo Ex. Ka-2, which was sent to the Forensic Science Laboratory for examination. The report of the Forensic Science Laboratory is Ex. Ka-28. The inquest report was prepared by S.I. Devindra Singh (PW-7), who also investigated the case against the accused-appellant under Section 25/4 of the Arms Act. Accused-appellant was arrested on 16th May 2003. During the course of interrogation, he got recovered the knife, which was used in the crime. The same was taken into possession vide memo Ex. Ka-3 and site plan of the place of recovery (Ex. Ka- 3 13) was also prepared. The F.I.R. under Section 25 of the Arms Act against the accused-appellant was also registered (Ex. Ka- 14). Injured-Manoj (PW-2) was also examined on the date of occurrence. On completion of the investigation, the challan was presented and accused-appellant was charge sheeted under Sections 302, 323, 504 of the I.P.C. and Section 25/4 of the Arms Act. to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced as many as ten witnesses. Complainant-Anoop Thapa (PW-1), brother-in-law of Rajendra Kukreti (deceased) and Injured- Manoj (PW-2) are the eyewitnesses. Dr. L.C. Punetha (PW-3) conducted the postmortem on the dead body of Rajendra Kukreti. Constable Dalip Singh (PW-4) removed the injured from the spot alongwith constable Ashok Rana. Constable Mohan Singh (PW-5) recorded the Chick F.I.R., S.O. Chandan Singh Bisht (PW-6) is the Investigating Officer. S.I. Devindra Singh (PW-7) prepared the inquest report and investigated the case under Section 25/4 of the Arms Act against the accused- appellant. Dr. S.S. Tolia (PW-8) examined injured Manoj (PW- 2) and prepared the medical report (Ex. Ka-26). Deepak Negi (PW-9) is the witness of the inquest report and Dr. Viraj Shah (PW-10) examined accused Lalit Puri and prepared the medical report (Ex. Ka-29). When examined under Section 313 Cr.P.C. the incriminating evidence was put to the accused by the prosecution, which he denied in toto and pleaded false implication. According to him, Complainant-Anoop Thapa (PW-1) and injured Manoj (PW-2) were giving knife injuries to Rajendra Kukreti (deceased). On hearing the noise, he (accused) went inside the canteen and tried to intervene but 4 both Anoop Thapa (PW-1) and Manoj (PW-2) left Rajendra Kukreti (deceased) and gave injuries to him. They also threatened the accused-appellant with dire consequences if anything was disclosed to the police. No evidence in defence was produced. We have heard Mr. Sandeep Tandon, learned counsel for the appellant, Mr. S.S. Adhikari, learned A.G.A. for the State and have gone through the evidence and material available on record. The prosecution case mainly rests on the testimony of both the eyewitnesses i.e., complainant-Anoop Thapa (PW- 1), brother-in-law of Rajendra Kukreti (deceased) and injured- Manoj (PW-2). Both the eyewitnesses have categorically stated that on the date of occurrence during the day accused-Lalit Puri had come to the canteen. He consumed the liquor thereafter he had some altercation and grappled with Rajendra Kukreti (deceased). He also gave two slaps to Rajendra Kukreti (deceased) and threatened him to kill. As per both the eyewitnesses due to the incident, which took place during the day, accused-Lalit Puri again came in the evening and caused injuries to Rejendra Kukreti (deceased). Both the eyewitnesses have clearly proved the motive for causing injuries to the deceased. They were thoroughly cross-examined but nothing could be elicited to shatter the testimony on all material facts. Injured Manoj (PW-2) is not related to Rajendra Kukreti (deceased). There is no evidence on record that he was in any way inimically deposed towards the accused. Not even a suggestion has been given that he had any animus or any motive to falsely implicate the accused. He is an independent witness and his presence at the place of occurrence was quite natural as he was working in the canteen itself. His presence is 5 proved at the spot as he also received injuries in the incident. He categorically stated that he was trying to save Rajendra Kukreti (deceased) at the hands of the accused and while he was intervening, he received injuries. Injured Manoj (PW-2) was examined by Dr. S.S. Tolia (PW-8), who prepared his medico legal report (Ex. Ka-26) and found the following injuries: - (i) Lacerated wound 1 c.m. x .5 c.m. on the right side index finger. (ii) Abrasion .5 c.m. on the top of middle finger. (iii) Abrasion .2 c.m. ring finger. As per opinion of Dr. S.S. Tolia (PW-8), these injuries could have been caused in the process of snatching (Chheena Jhhapti) the knife during the evening of 15th May 2003. Constable Dalip Singh (PW-4) also categorically stated that Manoj (PW-2) was accompanying the injured Rajendra Kukreti and he was also medico-legally examined in the hospital. As per the prosecution case complainant-Anoop Thapa (PW-1) and Manoj (PW-2) raised alarm when the accused was causing injuries to Rajendra Kukreti (deceased). Thereafter two police officials reached the spot and those police officials removed injured to Doon Hospital. Rukka (Ex. Ka-27) was sent by the Medical Officer, Doon Hospital to the S.O. Kotwali stating that a dead body had been brought by constables Dalip Singh (PW-4) and Ashok Rana. Though the name of the injured is not mentioned in Rukka (Ex. Ka-27). It is written that an unknown person was brought. 6 Learned counsel for the appellant vehemently argued that in case complainant-Anoop Thapa (PW-1) and injured Manoj (PW-2) were present at the place of occurrence and they had removed the injured to the hospital, they would have certainly disclosed the name of the injured/ the dead person to the doctor or at least to the police officials who had removed the injured to the hospital. It is thus submitted that name of both the eyewitnesses does not find mention in the Rukka (Ex. Ka-27) which creates serious doubt in the prosecution case with regard to the presence of both the alleged witnesses. The argument of learned counsel for the appellant at a glance appears to be impressive. However, after going through the testimony of both the eyewitnesses i.e., complainant Anoop Thapa (PW-1) and injured Manoj (PW-2) and constable Dalip Singh (PW-4) doubt stands clarified. It is not in dispute that Rajendra Kukreti (deceased) was removed to the hospital by two constables, namely, Dalip Singh and Ashok Rana. It does not appear to be unusual as in the presence of police officials, the eyewitnesses did not come forward to disclose anything to the doctor. Moreover Manoj (PW-2) was injured and therefore he must have been got busy to get himself medically examination. After going through the testimony of both the eyewitnesses i.e., complainant-Anoop Thapa (PW-1) and injured Manoj (PW-2), we are of the opinion that their testimony is cogent, truthful and consistent, though they were strenuously cross-examined by the defence counsel. Complainant-Anoop Thapa (PW-1) is, of course related to the deceased and therefore, the story put forward by the accused that complainant-Anoop Thapa (PW-1) and Manoj (PW-2) were causing injuries to Rajendra Kukreti (deceased), does not appear to be plausible. There is not an iota of evidence on record to show that complainant-Anoop Thapa (PW-1) and 7 injured Manoj (PW-2) had any reason to cause injuries to Rajendra Kukreti (deceased). In case it was so, the accused should have reported the matter to the police about the manner of the incident and the names of the assailants. Learned counsel for the appellant argued that prosecution has failed to explain the injuries on the person of accused, thus the manner of incident as stated by the accused appears to be plausible in view of the injuries found on the person of the accused. We do not agree with the argument of learned counsel for the appellant. In fact both the eyewitnesses, i.e., complainant-Anoop Thapa (PW-1) and injured Manoj (PW- 2) have categorically stated that accused-Lalit Puri had received injuries in the process of snatching (Chheena Jhhapti) the knife. The eyewitness account is fully corroborated by the medical evidence. As per Dr. L.P. Punitha (PW-3), who conducted the autopsy on the dead body of Rajendra Kukreti and found the following injuries: - (i) Incised wound on the left upper arm 4 c.m. x 2 c.m. x muscle deep, 10 c.m. below left shoulder. (ii) Incised wound 1.8 c.m. x .5 c.m. x cavity deep on the left side of lower chest, 12 c.m. below left nipple, obliquely place. (iii) Incised wound 2.5 c.m. x .5 c.m. x cavity deep, 10 c.m. posterior to injury no. 2. (iv) Incised wound 2 c.m. x .5 c.m on the interior aspect of left upper thigh. 8 (v) Incised wound 2.5 c.m. x 1 c.m. x cavity deep on posterior aspect of chest, 6 c.m below left scapula. (vi) Incised wound 2.5 c.m. x 1 c.m. x muscle deep on the posterior aspect of left thigh, 10 c.m. below left hip. (vii) Incised wound 1 c.m. x 1 c.m. skin deep on the left upper eyelid. (viii) Incised wound 1 c.m. x 1 c.m. x muscle deep right side of chest. As per opinion of Dr. L.P. Punitha (PW-3), the above injuries could be caused by sharp edged weapon i.e. the knife (Ex.-1). Injury no. 2 was sufficient to cause the death of the patient. The above injuries could have been caused at 6:30 p.m. on 15th May 2003 and the death was also possible at that time. As per the opinion of the doctor the death was caused on account of excessive hemorrhage and shock due to ante mortem injuries. The excessive hemorrhage could be on account of cut on the lungs and liver. Learned counsel for the appellant submitted that as per statement of Manoj (PW-2), injured Rajendra Kukreti succumbed to his injuries in the hospital and according to Dalip Singh (PW-4), when he reached the place of occurrence; Rajendra Kukreti (deceased) was still breathing. However, when he reached the hospital at 7:05 p.m., he was declared dead by the doctor and therefore, prosecution has not been able to disclose the exact time of his death. A perusal of the statements of Manoj (PW-2) and constable Dalip Singh (PW-4) as well as 9 from the deposition of Dr. L.P. Punitha (PW-3) the deceased had already died when he was brought to the hospital. However, he was alive when constable Dalip Singh (PW-4) had reached the spot but thereafter he succumbed to his injuries. Moreover it does not make any impact on the prosecution case as to whether the deceased died on the way while he was being removed to the hospital or he died when he reached at the hospital. There is no dispute that the occurrence took place at 6:30 p.m. and he was removed to the hospital by the police officials and reached the hospital at 7:05 p.m. Dr. L.P. Punitha (PW-3) has categorically stated that Rajendra Kukreti (deceased) was brought dead and the dead body of identified by constables Dalip Singh (PW-4) and Ashok Rana. He has also that there was possibility of injuries have been caused at 6:30 p.m. on 15th May 2003 and the death must have also taken around that time. Prosecution case is further fortified by the recovery of weapon of offence i.e., knife (Ex.-1) by the accused. It was got recovered by the accused in the presence of Manoj (PW-2) and Chandan Singh Bisht (PW-6), the Investigating Officer, which was taken into possession vide memo Ex. Ka-3). On scrutinizing the material and evidence on record, we are of the considered opinion that prosecution has successfully been able to prove its version with the help of the testimony of complainant-Anoop Thapa (PW-1) and injured Manoj (PW-2) that the accused had caused injuries with the help of knife (Ex.-1) on 15th May 2003 at 6:30 p.m. and the injuries so caused by accused-Lalit Puri were sufficient to cause death of Rajendra Kukreti (deceased). The ocular testimony of complainant-Anoop Thapa (PW-1) and injured Manoj (PW-2) is 10 quite consistent and appears to be truthful and their presence at the place of occurrence is quite natural. Injured Manoj (PW-2) has proved the motive for causing the injuries, as he was present at the time of occurrence, which took place earlier during the day. In view of the above detailed discussion, we do not find any ground to interfere with the judgment and order dated 03.12.2003 passed by the trial court in Sessions Trial No. 85 of 2003. The appeal is dismissed and conviction and sentence awarded by the trial court is hereby maintained. Registry is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 21.05.2010