Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1377 of 2001 Old Criminal Appeal No.164 of 1998 Dated of Decision: 09 .04.2010 Sanjai Khulbey …Appellant Versus State of Uttarakhand …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. S.S. Bhandari, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Nirmal Yadav, J. Appellant-Sanjay Khulbey has challenged the judgment and order dated 27.01.1998 passed by the Vth Additional Sessions Judge, Nainital in Session Trial No. 316 of 1997 whereby he has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (in short I.P.C.) and sentenced to life imprisonment and fine of Rs. 5,000/-. In default of payment of fine he has further been ordered to undergo three months simple imprisonment. The criminal law was set in motion on an application (Ex. Ka-2) moved by Smt. Sarita Kandpal (complainant) before the Station House Officer, P.S. Haldwani on 17.05.1993. As per the report, on 17.05.1993 at about 9:30 p.m. Smt. Sarita Kandpal (complainant) alongwith her brother Harish Chandra Durga Pal (hereinafter referred to Harish) was present at the house of her brother. All of a sudden two-three boys started pelting stones and brickbats. They came out and tried to stop the boys, however, accused-Sanjay Khulbey dragged Harish (deceased) towards his house, which is situated 2 close by. Accused-Sanjay Khulbey gave knife injuries on the body of Harish (deceased). When Smt. Sarita Kandpal (complainant) tried to intervene, she was given kick blow by the accused. The occurrence was witnessed by Mahendra Singh Negi and Bachi Singh also. According to complainant, Sanjay Khulbey was having grudge against her brother. The deceased succumbed to his injuries on the spot, however, he was declared dead when he was removed to the government hospital. On the basis of the written application Chick F.I.R. (Ex. Ka-12) was registered on the same day at about 10:50 p.m. in police station Haldwani, which is at a distance of six kilometers from the place of occurrence. The investigation was taken up by Vinod Kumar Sharma (PW-5), who reached the spot on receipt of the information and prepared the scaled site plan (Ex. Ka-5). He also took into possession the bloodstained earth and simple earth from the place of occurrence vide memo Ex. Ka-6 and recorded the statements of Bachi Singh, Mahendra Singh Negi and other witnesses. He also prepared the Panchayatnama and dead body was sent for conducting postmortem. The postmortem was conducted by Dr. Vimal Pant (PW-4), the postmortem report is Ex.Ka-3. On completion of the investigation, the challan was presented and accused-Sanjay Khulbey was charge sheeted under Section 302 of the I.P.C. to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced Smt. Sarita Kandpal, the complainant (PW-1), Sanjay Bisht (PW-2), who has given the eyewitness account, Mahendra Singh Negi (PW-3), is also alleged to be eyewitness of the occurrence, however, he was declared hostile, Dr. Vimal Pant (PW) 3 conducted the postmortem of the deceased and Vinod Kumar Sharma is the Investigating Officer (PW-5). Dr. Vimal Pant (PW-4) found the following injuries on the person of the deceased: - (i) Incised wound 4.5 c.m. x 2 c.m. x cavity deep on chest 4.5 cm. below the collarbone. On internal examination the vessels and lungs were found cut. The cavity of the lungs was full of blood. (ii) Incised wound 2.5 c.m. x .5 c.m. x tissue deep on the right side of neck. 5 c.m. above the collarbone. On internal examination mussels and other blood vessels were found totally cut. (iii) Incised wound 6 x .5 c.m. x tissue deep on the right inter scapular muscles 5 c.m. below injury no. 2. On internal examination all the muscles and small vessels were found cut. As per the opinion of the doctor the cause of death was on account of haemorrhage and shock due to ante mortem injuries. On conclusion of prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C. He denied all the allegations of prosecution and claimed innocence and false implication. We have heard Mr. S.K. Agarwal, learned Sr. Advocate assisted by Mr. S.S. Bhandari, Advocate for the appellant and Mr. Nandan Arya, learned A.G.A. for the State. 4 The prosecution case mainly rests on the testimony of Smt. Sarita Kandpal (PW-1), sister of the deceased. She is the informant and was present at the time of occurrence in the house of Harish (deceased). She was also given a kick blow by the accused. She has fully supported and reiterated the version given in the F.I.R. She has categorically stated that main accused-Sanjay Khulbey dragged her brother towards his house and she also followed them. According to her some marriage functions were held in the locality, therefore, there was a lot of light at the place of occurrence. This witness was thoroughly cross-examined, however, nothing could be elicited to discard or condemn her testimony on any account. She rather fully explained and corroborated the entire occurrence and the circumstances. According to her, there are five-six houses between the house of accused and deceased and the distance between their house only is 150 paces. She further clarified that the deceased was not dragged on the earth. He was dragged by holding his clothes and by making him walk and not lying on the ground. She also stated that initially there were two-three persons, who had pelted stones but later on the other persons had run away and only accused-Sanjay Khulbey remained and caused knife injuries to her brother Harish (deceased). The complainant followed the accused up to the stairs of his house where accused had caused knife injuries to Harish (deceased). It is pertinent to mention here that Harish (deceased) was removed to the hospital by the brother of the accused and his wife in their Maruti car. The learned counsel for the appellant has challenged the prosecution case mainly on the ground that no stones or brickbats have been taken into possession from the place of occurrence. Though according to Smt. Sarita Kandpal, the eyewitness (PW-1), occurrence took place in two stages, firstly; at the house of Harish (deceased) and secondly at the 5 house of accused-Sanjay Khulbey of which Bachi Singh and Mahendra Singh Negi were the eyewitnesses. However, out of those two eyewitnesses, Bachi Singh has not been produced by the prosecution while Mahendra Singh Negi has been declared hostile. It is further argued that from the deposition of Smt. Sarita Kandpal (PW-1) it becomes clear that she had not seen the accused causing knife injuries to Harish (deceased). This has also been affirmed from the testimony of Sanjay Bisht (PW- 2). It is further pointed out that the deceased was dragged for about 150 paces by holding hair but no signs of dragging have been found on the spot or on the dead body of the deceased. Learned counsel for the appellant further argued that even the testimony of Sanjay Bisht (PW-2) cannot be accepted as his name was not mentioned in the F.I.R. nor Smt. Sarita Kandpal (PW-1) had stated in her statement that occurrence was witnessed by Sanjay Bisht (PW-2). Learned counsel for the appellant also argued that the medical evidence does not support the prosecution case as there is no abrasion or any other injury found on the body of Harish (deceased), which could prove that he was dragged for about 150 paces by the accused. It is true that Smt. Sarita Kandpal (PW-1) did not mention in the F.I.R. that Sanjay Bisht (PW-2) had seen the occurrence, but after going through the record, the presence of Sanjay Bisht (PW-2) on the spot appears to be plausible. According to Sanjay Bisht (PW-2), he knew accused-Sanjay Khulbey and Harish (deceased) prior to the occurrence. On the fateful day he had gone to attend the marriage functions at the house of his friend-Kamal Joshi in Adarsh Colony, at about 9:30 p.m., and the entire passage was very well lit on account of the marriage functions. At that time, he saw that accused- Sanjay Khulbey was dragging Harish (deceased) towards his 6 house and meanwhile Smt. Sarita Kandpal, sister of deceased (PW-1) also came running behind them. Accused-Sanjay Khulbey took Harish (deceased) on the stairs of his house and he saw Harish (deceased) in an injured condition on the parapet (Chhajjaa) of the house of the accused. Immediately thereafter, Harish (deceased) was removed to the hospital and the witness also followed him to the hospital. Sanjay Bisht (PW-2) also stated that accused Sanjay Khulbey was dragging the deceased by holding his clothes. He also deposed that Harish (deceased) was removed to the hospital by the brother of the accused. Though the name of Sanjay Bisht (PW-2) has not been mentioned in the F.I.R. yet his testimony appears to be consistent and trustworthy. There is no reason to disbelieve the version given by him. There is nothing to suggest that he was inimically disposed towards the accused or he was an interested witness or was having any relation with the deceased. His presence at the place of occurrence appears to be natural, as he had gone to attend the marriage at the house of his friend. This witness categorically stated that place of occurrence was well lit on account of the marriage functions. The plea of learned counsel for the appellant that there are no abrasions or signs of dragging on the body of the deceased or in the passage has been clarified by witnesses, Smt. Sarita Kandpal (PW-1) and Sanjay Bisht (PW-2). They have categorically stated that Harish (deceased) was being dragged with the help of his clothes in walking position and not lying on the ground. In such a situation there would be no abrasions or other signs of dragging in the passage or on the body of Harish (deceased). The mere fact that Bachi Singh has not been produced by the prosecution does not demolish the prosecution case. It is the prerogative of the prosecution to choose the witnesses to be produced in order to prove its case. 7 The fact that Mahendra Singh Negi has been declared hostile or has not supported the prosecution case also does not create any doubt in the prosecution case. Rather from the perusal of his deposition it is clear that Harish (deceased) was caused knife injuries but it appears that under some influence or pressure he has not supported the prosecution case. However, Smt. Sarita Kandpal (PW-1) and Sanjay Bisht (PW-2) have supported the prosecution case on all material facts. The learned counsel for the appellant argued that as per the F.I.R. some stones and brickbats were pelted by the accused alongwith two-three other persons but stones etc. were not taken into possession, shows that the prosecution has failed to prove the genesis of occurrence. The argument has no force. The investigating officer had inspected the spot immediately on receipt of the information; and prepared the site plan Ex. Ka-5. In the site plan at point ‘A’ has been shown where the stones were lying which were pelted towards Harish (deceased). Point ‘B’ has been shown from where accused-Sanjay Khulbey alongwith his associates had pelted stones. However, it appears to be lapse on the part of the investigating officer that he did not take into possession the stones from the place of occurrence. It is well established that such lapse on the part of the investigating agency would not affect the prosecution case, if the prosecution story is otherwise proved by the cogent evidence available on record. As discussed in the earlier part of the judgment, the prosecution case is fully proved from the cogent and consistent testimony of Sarita Kandpal (PW-1) and Sanjay Bisht (PW-2) therefore, mere lapse on the part of the investigating agency does not create any dent in the prosecution case. 8 The ocular testimony is fully supported by the medical evidence. Smt. Sarita Kandpal (PW-1) categorically stated that accused-Sanjay Khulbey had caused knife blows on the body of her brother Harish (deceased). She had followed her brother while he was being dragged by the accused towards his house and had seen him causing injury with the knife. The learned counsel for the appellant has laid stress on the fact that the brother and sister-in-law of accused-Sanjay Khulbey had removed Harish (deceased) to the hospital in their own car. This gesture on the part of the brother and sister-in- law of accused would not absolve him from the consequences of the act done by the accused. In view of the detailed discussion, we find no merit in the appeal and the same is dismissed. Conviction and sentence awarded against the appellant is affirmed. If the appellant is on bail, his bail bonds are cancelled and sureties are discharged and he shall be taken into custody forthwith to serve out the sentence awarded by the trial court. The office is directed to send back the lower court record for compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 09.04.2010