State Of H.P vs Rakesh Kumar

2. Being aggrieved by the aforesaid order of conviction and sentence, the respondent filed an appeal from jail before the Page 1 of 13 Himachal Pradesh High Court which was heard and at the end, the aforesaid order of acquittal was passed which is under challenge in this appeal.

3. Before we deal with the contentions raised by the counsel appearing for the parties, it would be necessary to notice the facts which are the basis of the aforesaid criminal case. Yash Pal (PW-3) was working as Chowkidar in Income Tax Office at Mandi. Sanjiv Rana (PW-2) was working as Clerk in Agriculture Land Development Bank, Mandi. Both of them were related to each other and also hail from the same village. Gagnesh Kaushal (PW-1) was one of their friends and was running his painter's shop at Paddal. On 13.1.2000, which was a Lohri day, the deceased Sanjiv Sen arranged for a party in the house of Yash Pal (PW-3) and invited Gagnesh Kaushal, Sanjiv Rana and Sharwan Kumar to the said party. While they were sitting in the room of Yash Pal, both Yash Pal and his wife had gone for dinner at Mohalla Paddal from where they returned at about 9.30 p.m. It has come out in evidence that before return of the couple, all the aforesaid persons had consumed a bottle of liquor. Music was also being played at a low pitch. Wife of Yash Pal (PW-3) had gone to bed after having dinner as she was not well. It is also disclosed from the evidence on record that on the same day i.e. on Page 2 of 13 13.1.2000 when the aforesaid party was on, and around 10.30 p.m. the accused knocked at the door of the aforesaid room upon which it was opened by Sharwan. The respondent entered the room and asked as to who had called his name. Being so asked Gagnesh Kaushal (PW-1) stated that nobody had called him and the respondent was asked to leave the room. While going out of the room, the respondent further told Gagnesh Kaushal (PW-1) to make the deceased understand otherwise his head would be smashed. Saying so, the respondent left the room. Gagnesh Kaushal (PW-1) claimed to have bolted the room from inside and they were dancing in the said room when around 12 to 12.30 p.m. in the midnight of 13th and 14th January, 2000, the deceased Sanjiv Sain opened the door and went out for urination. It is alleged that at that time and as soon as he opened the door and was in the process of going out, he was stabbed by the respondent with a sharp-edged weapon in chest. According to Gagnesh Kaushal (PW-1), an attempt was made by him i.e. PW-1 and others to nab the culprit immediately after the victim was stabbed but the respondent fled away from the spot. Gagnesh Kaushal (PW-1) at that stage asked Sharwan to press the chest of the deceased so as to control the bleeding. He also brought cotton from the nearby house and gave first aid to the deceased. He also rushed out to Page 3 of 13 arrange a three wheeler. When the deceased was taken to Sanjivan Hospital, Mandi by him, and Sharwan, others were sent to inform the villagers. As no doctor was available at the aforesaid private hospital, the deceased was taken to Zonal Hospital, Mandi. They reached the hospital at about 1.20 a.m. and as soon as they reached the hospital, the deceased was given treatment by the doctor but he died around 1.30 a.m.

4. In view of the aforesaid situation, Gagnesh Kaushal (PW-1) the informant went to the police station and lodged the first information report which is marked as Annexure P-1/A. After receipt of the aforesaid first information report, the police started investigation during the course of which a post-mortem examination was done on the body of the deceased. The post- morterm report was exhibited in the trial court and marked as Exhibit P-8/A. After completion of the investigation, the police submitted charge-sheet against the respondent and charge was framed against the respondent. During the course of the trial, a number of prosecution witnesses were examined. However, the defence examined none. The respondent was examined under Section 313 of Cr.PC and after completion of the trial, the trial court found the petitioner guilty of the offence alleged against him. After passing an order of conviction, the Additional Page 4 of 13 Sessions Judge sentenced the respondent to undergo rigorous imprisonment for life under Section 302 of IPC and also to pay a fine of Rs. 5,000/- and in default of payment of the fine to undergo simple imprisonment for a further period of six months.

7. The accused-respondent preferred the appeal as against his order of conviction and sentence. The aforesaid appeal was taken up by the Division Bench of the Himachal Pradesh High Court. The High Court, on appreciation of the evidence on record, held that there are a number of discrepancies in the statements of the prosecution witnesses namely Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) and that no order of conviction and sentence could be passed on the basis of such vital discrepancies in the statements. Therefore, the High Court by its judgment and order dated 08.08.2003 allowed the appeal filed by the respondent and set aside the order of conviction and sentence passed by the learned Additional Sessions Judge, Mandi and directed that the respondent shall be set at liberty forthwith.

8. Aggrieved by the aforesaid order of acquittal of accused- respondent, the present appeal is filed by the State of Himachal Pradesh.

16.Consequently, the order of acquittal passed by the High Court is bad and illegal. We hereby set aside the said order of acquittal and restore the order of the trial court. We pass an order of conviction and sentence against the respondent in terms of the order passed by the trial court. The bail bond of the respondent is hereby cancelled. The accused-respondent shall surrender immediately to serve out the remaining term of sentence.

17.The appeal is allowed to the aforesaid extent.