IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 708 of 2008 alongwith Cr. Appeal No.228 of 2009 Judgment reserved on : 30.3.2010 Date of decision : 24.4..2010 ____________________________________________________ 1. Cr. Appeal No.708 of 2008 Kishul Kumar …Appellant. Versus State of Himachal Pradesh …Respondent. 2. Cr. Appeal No.228 of 2009 Rajiv alias Bunti ..Appellant Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellant(s) : Mr. Rakesh Jaswal, Advocate for the appellant in Cr. Appeal No.708 of 2008 and Mr. Vinod Thakur, Advocate for the appellant in Cr. Appeal No.228 of 2009. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General with Mrs. Shubh Mahajan, Dy. Advocate General ( In both the appeals) Kuldip Singh, Judge This judgment shall dispose of two jail appeals filed by convicts against their conviction and sentence dated 25/29.9.2008 passed by learned Addl. Sessions Judge, Shimla in Sessions Trial No.6-S/7 of 2007, sentencing Kishul Kumar to undergo rigorous imprisonment for seven years and Rajiv alias Bunti to undergo rigorous ________________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 imprisonment for five years for offence under Section 307 IPC, they are also sentenced to pay fine of Rs.20,000/- and Rs.10,000/- respectively, in default of payment of fine, they shall undergo simple imprisonment for two years and one year respectively. Out of the fine amount 50% amount has been ordered to be paid to victim Dixit Rajpoot when realized. 2. The prosecution case in brief is that on 6.8.2007 at about 7.25 pm, a telephonic information was received from one Raghunandan Chaudhary, owner of Hotel Sentiments that three boys had stayed in room No.6 at his hotel, out of them one boy was lying inside the room with his neck cut and bleeding, the door of the room was bolted from out side. The police reached the spot and found a boy in injured condition in the room. He was not able to speak but he could write. He wrote his phone number and names of his assailants. He was taken to hospital. Police recorded the statement of PW-4 Sunder Singh an official of the hotel. The police took photographs of the spot and took into possession blood stained bed-sheet, cigarette butts, hair etc. from the spot. 3. It was revealed during investigation that injured Dixit Rajpoot, resident of Haldaur, District Bijnour (UP) left his house on 30.7.2007 at about 6.30 pm, but he did not return till 8 pm, the family members started searching him. It was found that a sum of Rs.40,000/- were also missing from the house. The father of Dixit Rajpoot later on came to know that his son was seen in the company of one Akash at Haridwar Railway Station. Akash is brother of accused Kishul and Kishul was serving at Baddi in Himachal Pradesh. 3 Mahesh and some relatives of Akash came to Baddi and they found Akash there. But Akash did not tell them anything. Akash was taken to Haldaur and then to Police Station Haridwar. Akash was interrogated by the police. In the meantime, Shimla Police telephonically contacted Mahesh and informed father of Dixit Rajpoot that his son was at Shimla in injured condition. 4. It has also come in investigation that Akash had taken all money from Dixit Rajpoot which he had stolen from his house except a sum of Rs.4,000/-. On 5.8.2007 Akash gave a sum of Rs.14,000- 15,000 to his brother Kishul out of the money of Dixit Rajpoot and sent Kishul and Rajiv alias Bunti with Dixit Rajpoot for a trip to Shimla. They stayed in hotel Amar at Shimla on 5.8.2007 and in hotel Sentiments on 6.8.2007. The entry in holtel Sentiments about their arrival was made by Kishul. He however, had entered a false name in the register. Dixit Rajpoot demanded his money back. At this, the accused, in order to do away with his life, cut his neck with a knife and left him in the room thinking that he was dead, they locked the room from outside. 5. The accused were arrested, knife was produced by accused Kishul. He also produced currency notes worth Rs.11,205/-, recoveries were made, identification parade was done to which only Kishul had agreed and he was identified. The specimen handwritings were also taken. Akash could not be arrested. The police submitted the challan against two accused. 6. The accused were charged for offence punishable under Sections 326, 307, 342 and 120-B IPC. They pleaded not guilty. The 4 prosecution has examined 28 witnesses to bring home the charge. The accused were examined under 313 Cr.P.C., they denied the prosecution case. The accused led no evidence in defence. The learned Addl. Sessions Judge has convicted both the accused under Sections 306, 307, 342 and 120-B IPC but sentenced both the accused as noticed above, hence two separate appeals by the convicts. 7. I have heard Mr. Rakesh Jaswal, Advocate learned counsel for the appellant in Cr. Appeal No.708 of 2008 and Mr. Vinod Thakur, Advocate learned counsel for the appellant in Cr. Appeal No.228 of 2009 and Mr. P.K. Sharma, learned Addl. Advocate General and Mrs. Shubh Mahajan, learned Dy. Advocate General for respondent in both the appeals and have also gone through the record. It has been submitted on behalf of the appellants that appellants have been falsely implicated in the case. It has not been proved beyond reasonable doubt that accused have committed the offence. The statement of injured PW-10 Dixit Rajpoot does not inspire confidence. The prosecution has shifted the place of alleged occurrence from bus stand to Sentiments hotel. The accused have not been identified. On behalf of accused Rajiv alias Bunti it has been additionally submitted that there is no legal, convincing evidence to connect him with the commission of offence. It has been submitted on his behalf that the case against him is of no evidence. 8. PW-1 Mahesh Paswan has stated that he had been working in hotel Sentiments for the last five years. On 6.8.2007 at about 3.30 pm he took water to room No.6 and came out of the room, three boys then entered the room. Out of the three boys who 5 stayed in the room, two are the accused persons present in the Court. At about 4 pm both the accused persons present in the Court came out of the room No.6 and at that time he was present at reception. At about 6.30 or 6.45 pm a bell rang at the reception. There was some fault in the bell; therefore, it could not be ascertained from which room the bell had come. He went in two-three rooms, but the occupants told that they did not ring the bell. While he was returning from the rooms, he saw third boy who was not present in the Court and was beckoning him to come to him. There was a lock at the door of room No.6. He saw that the throat of that boy was cut and it was bleeding. He informed the manager Shishu Paul. On 9.8.2007 he and Sunder Singh were called to Kanda Jail where they had identified the accused present in the Court. In cross-examination he has stated that the boy was standing near the window when he came near the window of room No.6. The boy expressed by signal that his throat was cut. Police broke open the lock. On Court question he has stated that other boy was not present on that day in Kanda jail. 9. PW-2 Shishu Paul has stated that on 6.8.2007 he was working as manager in hotel Sentiments. On 6.8.2007 at about 7.10.pm Mahesh and Sunder Singh came to his room in the hotel and informed that a boy in room No.6 was in injured condition while the room was locked. He went near room No.6 and saw through the window that the throat of the boy in the room was cut and there was blood on his clothes. He informed the hotel owner Pankaj Chaudhary on telephone and himself went to Police Post, Bus Stand, but in the meanwhile owner and some police officials from Police Station, Sadar 6 had arrived at the hotel. The police officials broke open the lock of the room and took the boy towards IGMC. He has proved recovery memos Ex.PW-2/A, Ex.PW-2/B and Ex.PW-2/C. He has proved belt Ex.P-1, pair of chappals Ex.P-2, tags of clothes Ex.P-3 to Ex.P-5, polythene carry bag Ex.P-6, cigarette cartons Ex.P-7 and Ex.P-8, sachets Ex.P-9 and Ex.P-10, lock Ex.P-11, pillow Ex.P-18, quilt covers Ex.P-19 and Ex.P-20. The finger prints from the glasses were also lifted. He has also proved glasses Ex.P-21 to Ex.P-23. He has proved Ex.PW-2/D memo of taking into possession of hotel register Ex.P-24. He has also proved parcel Ex.P-25, hair Ex.P-26, parcel Ex.P-27, cigarette butts (ten) Ex.P-28, bottle Ex.P-29. He was cross-examined on behalf of both accused separately but in the cross-examination nothing favourable to the accused was extracted. 10. PW-3 Pankaj Chaudhary has stated that his father is owner of hotel Sentiments. On 6.8.2006 Shishu Paul, manager, hotel Sentiments had made a telephonic call to him at 7.10 pm informing that there was a person in room No.6 of the hotel Sentiments whose throat was cut. The witness informed telephonically to his brother Raghunandan who informed the police. The police reached the spot, when he reached. The police got the lock broken. He entered the room with the police and found a boy lying on the bed with throat bleeding. He was unable to speak. He wrote names of Amit and Bunti on a piece of paper when police enquired from him who were with him. The writing is Ex.PW-3/A. In cross-examination he has stated that he, his brother and some police officials entered the room. 7 The job of Mahesh Paswan was to serve water to the visitors and to clean the rooms. 11. PW-4 Sunder Singh has stated that he had been working as chowkidar in hotel Sentiments since the year 1999. On 6.8.2007 three boys arrived at the hotel for booking a room and room No.6 was booked for them. The entry was made by the boy by pointing towards accused Kishul, which was made in his presence. After the entry was made, the three boys went to their room. At about 7 or 7.15 pm he saw a person inside the room and bleeding from the throat. He came back to Manager Shishu Paul and informed him. Shishu Paul arrived at the spot and thereafter the police and owner of the hotel came, the lock was broken and injured was taken to hospital. He made the statement Ex.PW-4/A. In cross-examination he has denied that he cannot identify Kishul or that he did not arrive at the hotel. The police had not shown him this boy out side the Court. He handed over the key to Kishul Kumar when he made the entry. 12. PW-5 Sanjeev Kaushal has stated that in the year 2007 he was a nominated councillor in Nagar Panchayat Baddi. The accused persons were in police custody. Kishul in his presence has stated that the weapon used was a ’knife’ and was lying in his quarter under C.D. Player. In his presence the accused took out the ‘knife’ from below the C.D. Player and produced to the police. The statement of Kishul Ex.PW-5/ A was recorded which bears his signature. The sketch map of ‘knife’ is Ex.PW-5/B. He has identified ‘knife’ Ex.P-12 which was produced by Kishul and taken into possession vide memo Ex.PW-5/C which was signed by him, 8 Mahesh Verma and Kishul. Kishul had produced clothes which were taken into possession vide memo Ex.PW-5/D. He identified pant Ex.P-13, T-shirt Ex.P-14 of Kishul which were taken into possession vide recovery memo Ex.PW-5/E. Kishul had produced Rs.11,205/- and stated that the money belongs to Dixit. The currency notes Ex.P-17 were taken into possession vide memo Ex.PW-5/F. In cross- examination, he has stated that the aforesaid memos were made in front of Kishul’s room. He denied that ‘Chhura’ clothes etc. were not produced by Kishul to police. 13. PW-6 Mast Ram has stated that he has a house at Baddi. Accused Kishul present in the Court took from him a room in the second floor of the said building in May, 2007 on a monthly rent of Rs.1100/-. PW-7 Ranvir Singh is the father of injured Dixit Rajpoot and has stated that on 30.7.2007 Dixit Rajpoot at about 6.pm left the house to go to his tutor but did not return in the evening. On next day they went to Akash, younger brother of Kishul. Kishul was friend of Dixit Rajpoot. He was searched here and there but he was not found. On 5.8.2007, brother of the witness, father of Akash, two nephews of the witness proceeded to Baddi and reached there during night. Later on, it was found that a sum of Rs.40,000/- were also missing from the house, while they were going to lodge a report about Dixit having gone missing, a telephone call was received from Shimla informing that throat of Dixit has been cut with ‘Chhura’. Thereafter they came to Shimla, his son gave his statement Ex.PW-7/A in writing to the police as he was unable to speak. He was cross-examined but nothing favourable to the accused was extracted in his cross-examination. 9 PW-8 ASI Tapinder Singh has stated that he had been working as ASI at Police Station, Baddi since July, 2005. On 6.8.2007 SHO, Police Station,Sadar had informed him that two boys Bunty and Kishul had gone to Baddi after committing a crime at Shimla. They were found in their quarter and were brought to police station. The Shimla police was informed. A police party came from Shimla and the boys were handed over to them. The entry No.36 regarding receipt of telephone from Shimla was made in Rojnamcha. The entry No.42 is of bringing Bunty and Kishul to police, copy of which is Ex.PW-8/A, the entry No.44 of handing over of the accused persons to Shimla Police, copy of which is Ex.PW-8/B. PW-9 constable Vikram Singh is a witness of taking into possession of bed sheet Ex.P-31 by Roshan Lal vide memo Ex.PW9/A. 14. PW-10 Dixit Rajpoot is the injured. This witness was not in a position to speak; his examination-in-chief was recorded in Hindi which was translated in English by learned Addl. Sessions Judge. The cross-examination of this witness by the two accused is recorded in question and answer form. He has stated that on 30.7.2007 he had taken a sum of Rs.40,000/- from his house and met Akash at Haldaur. Akash had given him Rs.4,000/- and asked him to go to Haridwar and he would come in two-three days. The rest of the money was kept by Akash. On 4.8.2007 Akash brought him to Baddi. All his money was with Alash. Akash told that he had some work with the company and he ( witness) should go to Shimla with his brother Kishul and his friend Bunty. 10 15. On 5.8.2007 they came by bus from Baddi to Shimla. Akash had given Kishul a sum of Rs.14,000-15,000/-. On 5.8.2007 they stayed in hotel Amar. On 6.8.2007 they took room No.6 in hotel Sentiments, Kishul got entry made at the reception. At about 2 pm to 3 pm Kishul brought a quart of liquor, consumed the same and also served to him. The glasses were used for consuming the liquor. The witness started vomiting and was lying. Kishul took out a knife and rubbed it on the neck of witness 3-4 times, Bunty closed the mouth of the witness. Then both of them left after closing the room. Kishul returned and on seeing the witness standing, laid him on the bed and again assaulted him with the knife on his neck. Thereafter Kishul left after closing the room. After a while he regained consciousness, he tried to open the room. Thereafter some employee of the hotel saw him and police was called. 16. He was not able to speak at that time. He gave paper to police upon which Ex.PW-3/A was written. He identified the knife with which he was attacked by Kishul. According to him, he demanded money from Kishul and for this reason he was attacked. Kishul and Bunty left thinking that he had died. In the hospital he gave statement to the police in writing. He identified Kishul and Bunti present in the Court. The questions No.26,27 and 30 were put to this witness in cross-examination on behalf of accused Rajiv alias Bunti which are as follows:- Q.No.26. Look here, accused Buntty never came with you, nor ever closed your mouth? Q.No.27. Look here, you are seeing accused Buntty for the first time in your life today? 11 Q.No.30 When did you see accused Buntty before today? The witness has answered the aforesaid questions as follows:- Ans.No.26 It is incorrect. Ans.No.27 It is incorrect. Ans.No.30. I had seen him in Haldour within a year before my throat was cut. He lived with Kishul for about a week. In answer to question No.2 he has stated that apart from Ex.PW-3/A, he gave his statement in writing (to the police). This witness was cross-examined thoroughly by both the accused but he has supported the prosecution story. 17. PW-11 Dr.Parveen S. Bhatia has stated that in the year 2007 he was posted as Causality Medical Officer in IGMC, Shimla. On 6.8.2007 at 8.15 pm he examined one Dixit Rajpoot, aged about 25 years, who was brought to him by the police with alleged history of being stabbed by someone at main bus stand, Shimla. He found the following injuries on the person of Dixit Rajpoot. “Injury No.1: Clean cut wound in the front of neck. Trachea was exposed and cut more than half in circumference. Patient was breathing through trachea and was profusely bleeding at the time of examination. Injury No.2 Clean cut wound on the middle phallan of middle finger right hand and distal phallan of thumb and middle finger. These could probably be defence wounds. In order to ascertain the nature of injuries, patient was advised X-rays of the survival spine and expert ENT opinion. MLC X-rays forms were filled and handed over to the police. Final opinion regarding the injury No.1 was withheld till ENT opinion and X-rays report. Injury No.2 was simple in nature. Both the injuries were caused within 6 hours from the time of examination and were caused with sharp object. Patient was in very critical condition. His neck vessels were cut and he was bleeding profusely and was proceeding towards condition of shock. He had to be operated immediately and was shifted to operation theatre directly from the causality department and was operated upon jointly by ENT and CTVs departments. As per the ENT and CTVS report, the injury was grievous and life threatening in nature. I have seen knife ( Chhoora) Ex.P-12. Injury No.1 can be caused with this kind of weapon. I issued MLC Ex.PW11/A which is in my hand and bears my signature” 12 18. PW-12 Dr. Payal Gupta has stated that he was posted in DDU, hospital, Shimla and he examined Bunty Kumar. On examination he found nothing abnormal. He took sample of his blood and handed over the same to police. He issued MLC Ex.PW-12/A. He identified accused Bunti present in the Court. Thereafter on the same day he examined accused Kishul Kumar and found nothing abnormal. He took sample of his blood and handed over the same to police and issued MLC Ex.PW-12/B. He identified accused Kishul present in the Court. 19. PW-13 Satish Kumar is a formal witness about the fact that on 4.8.2007 he was at Haridwar Railway Platform. He saw Dixit and Akash. PW-14 constable Sanjeev Kumar is a photographer and has proved photographs Ex.PW-14/A-1 to Ex.PW-14/A-17 and negatives Ex.PW-14/A-18 to Ex.PW-14/A-34. PW-15 constable Mohinder Singh has proved copy of general diary No.30(A) dated 6.8.2007 Ex.PW-15/A. PW-16 constable Rajesh Kumar is a witness to handing over 11 parcels by MHC Sita Ram to him, besides seals, an envelope and RC which the witness had handed over at FSL Junga. PW-17 constable Gurditta Singh is again a formal witness of handing over two parcels and seals by Sita Ram MHC to him on 21.9.2007 which the witness had handed over to Finger Print Bureau, Phillaur. PW-18 HC Sita Ram is a witness of handling parcels, seals. He has proved copies of Malkhana register Ex.PW-18/A to Ex.PW-18/D and RCs Ex.PW-18/E, Ex.PW-18/F and Ex.PW-18/G. PW-19 ASI Raghuvir Singh has stated that during night intervening 6th and 7th day of 13 August, 2007 constable Bhupinder Singh arrived at the police station at 1.30 am with statement Ex.PW-4/A written by SHO Brijesh Sood. On the basis of this statement, he has lodged FIR Ex.PW-19/A which bears his endorsement Ex.PW-19/B. 20. PW-20 constable Bhupinder Kumar has stated that he had worked as constable at Police Station, Sadar from January, 2007 to November, 2007. He alongwith SHO Brijesh Sood, ASI Rattan Singh and constable Rajeev went to hotel Sentiments where room No.6 of the hotel was found locked. The lock was broken, they saw a person with cut throat lying on the floor. He was taken to IGMC. The SHO wanted to know something from him, but due to his cut throat he was not able to speak. The SHO recorded the statement of Sunder. He went to the police station with ruka Ex.PW-4/A. In cross-examination he has stated that the boy whose throat was cut was Dixit by name. The statement of Sunder was recorded in his presence. PW-21 HC Roshan Lal has stated that he had been working as I.O. in Police Station, Sadar since July, 2006. On 7.8.2007 he went to IGMC. He took bed sheet in possession vide memo Ex.PW-9/A. In cross- examination he has stated that the bed sheet was handed over to the MHC in the evening. The report of Finger Print Expert Ex.PX was tendered in evidence by learned Public Prosecutor. 21. PW-22 Dr. Gian Thakur, Assistant Director, State Forensic Science Laboratory, Junga, Shimla has proved letter Ex.PW-22/A and report Ex.PW-22/B. PW-23 Dr. Sanjeev Gupta, Medical Officer has stated that he had been working as Medical Officer in DDU, Shimla in the month of August, 2007. On the application Ex.PW-23/A of the 14 police he took samples of hair of accused Kishul Kumar and Rajiv alias Bunty. He had issued MLCs Ex.PW-23/B and Ex.PW-23/C. 22. PW-24 Dr. Madhuri Dadwal, has stated that he had been working as ENT Surgeon in IGMC, Shimla in the year 2007. On 6.8.2007 patient Dixit was brought to causality department of IGMC with cut throat injury and profuse bleeding from wound. Patient was in semiconscious condition with blood pressure 90/60 mm of Hg. and pulse 96. Patient was shifted to Operation Theater in Emergency and Life Saving surgery to stop the bleeding was undertaken by ENT and CTVS departments after endotracheal intubation. She had issued case summary Ex.PW-24/A which bears her signature. The injuries were grievous in nature and life threatening because the patient could have died due to shock, excessive bleeding; excessive heamorrhagic and patient could have died of stoppage of respiration as respiratory track was cut. The patient could have died because of asphyxiation. The patient was not able to speak anything because of the separation of cricoid of thyroid cartilage. The statement Ex.PW- 7/A bears her signature. She was cross-examined but from her cross- examination it cannot be said that she stated something which helps the defence. 23. PW-25 HC Sanjeev Kumar, Finger Print Expert, has proved report Ex.PW-25/A. In cross-examination he has stated that glasses Ex.P21, Ex.P-22, and Ex.P-23 are brand new glasses. PW-26 Dhiru Thakur, Judicial Magistrate Ist Class, Court No.6, Shimla has conducted the test identification parade. He has stated that Sanjeev stated that he knew what is