REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1494 OF 2003

State of Himachal Pradesh              ..…Appellant

Versus

Rakesh Kumar                                    .….Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This is an appeal against the judgment and order of acquittal of  

the accused-respondent by the Division Bench of the Himachal  

Pradesh  High  Court  whereby  the  High  Court  acquitted  the  

accused-respondent  after  he  was  found  guilty  under  Section  

302 of the Indian Penal Code (for short the ‘IPC’) by the Trial  

Court,  Mandi,  Himachal  Pradesh.   Pursuant  to  the  aforesaid  

order of conviction the trial court sentenced the respondent to  

undergo rigorous imprisonment for life and also to pay a fine of  

Rs. 5,000/- and in default to undergo simple imprisonment for  

six months.

2. Being  aggrieved  by  the  aforesaid  order  of  conviction  and  

sentence, the respondent filed an appeal from jail  before the  

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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  

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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  

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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  

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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.   

5. The trial court, while rendering the judgement of conviction and  

sentence,  examined  the  statements  of  all  the  prosecution  

witnesses.  In the light of the submissions made by the defence  

counsel before him, the trial court, however, found that there  

was  no  major  discrepancy  in  the  statements  of  any  of  the  

witnesses so as to cast a shadow of doubt in coming to the  

conclusion  that  any  of  the  three  witnesses  namely  Gagnesh  

Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) is not  

trustworthy.  The trial court found that the statements given by  

all  the  three  witnesses  corroborate  each  other  on  material  

particulars and that the flow of their version appears to be quite  

natural.  Prosecution witnesses Gagnesh Kaushal (PW-1), Sanjiv  

Rana  (PW-2)  and  Yash  Pal  (PW-3)  had  stated  in  their  

statements that they had seen the accused causing blow in the  

chest of the deceased.   

6. The aforesaid version of Gagnesh Kaushal (PW-1), Sanjiv Rana  

(PW-2)  and Yash Pal  (PW-3)  was challenged by the defence  

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counsel  and in  that  view of  the  matter  their  deposition  was  

critically  analysed  by  the  learned  Additional  Sessions  Judge.  

He,  however,  found that  it  was apparently  clear  that  all  the  

aforesaid three prosecution witnesses were present in the house  

of Yash Pal (PW-3).  They were, therefore, natural witnesses.  

The deceased Sanjiv Sain after opening the door was stepping  

out to urinate when he was immediately given a blow on his  

chest.  At that stage the deceased came running inside and he  

named the accused  for  stabbing him in  his  chest.   Gagnesh  

Kaushal (PW-1) has also stated that he along with Sanjiv Rana  

(PW-2) and Yash Pal (PW-3) tried to chase the accused but he  

ran  away  from  the  spot.   The  aforesaid  statement  of  the  

deceased which was relied upon by Gagnesh Kaushal (PW-1),  

Sanjiv Rana (PW-2) and Yash Pal (PW-3) was in the nature of a  

dying declaration made to them.  There is no reason why the  

said statement cannot be taken into consideration as a relevant  

fact.  There is also no reason as to why the deceased would  

falsely implicate the accused to save the real assailant.   The  

trial court also relied upon the discovery of the knife containing  

human blood at the instance of the accused from his house.  

After detailed appreciation of the evidence on record, the trial  

court came to the conclusion that accused had committed the  

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offence  under  Section  302  of  IPC  and  he  was  sentenced  

accordingly.

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.  

9. Mr.  J.S.  Attri,  learned  counsel  appearing  for  the  appellant,  

during the course of his submission before us, minutely took us  

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through  the  evidence  on  record  and  pointed  out  that  the  

discrepancies on which the High Court had relied upon cannot  

be stated to be very vital.   He submitted that there was no  

reason as to why the aforesaid witnesses as also the deceased  

would rope in the accused-respondent as no enmity is proved  

between them.  It  was also submitted by him that the High  

Court was not justified in putting undue reliance on absence of  

blood  on  the  floor,  as  stated  by  Inspector  Ram  Swaroop  

Sharma,  Investigating  Officer  (PW-13),  as  according  to  the  

witnesses namely Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-

2) and Yash Pal (PW-3), the deceased immediately after being  

stabled came back to the room where he was put on the cot.   

10.There is no dispute with regard to the fact that the presence of  

Gagnesh  Kaushal  (PW-1),  Sanjiv  Rana  (PW-2)  and  Yash  Pal  

(PW-3) in the room was natural and that they could see that  

the deceased was stabbed in his  chest  immediately  after  he  

opened the door upon which he came back and told them about  

the incident.  He was put on the cot and the place of the wound  

was pressed with cottons.  In that view of the matter it would  

be natural that no blood was found on the floor but the same  

was found on the cot and in the clothe that the deceased was  

wearing  on  that  day.   Therefore,  acquittal  of  the  accused-

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respondent on the said ground, in our considered opinion, was  

not justified.

11.Yash Pal (PW-3) was the tenant of the room where Gagnesh  

Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) were  

present at the time of occurrence along with the deceased.  It  

has come in evidence that about two hours before the incident  

the accused came to the place and abused the deceased upon  

which he was sent back at 10.30 p.m. i.e. after two hours of  

that incident the deceased received the aforesaid injury on his  

chest when he was going out of the room by opening the door.  

Immediately after receiving the said injury he came back to the  

room and told all present including Gagnesh Kaushal (PW-1),  

Sanjiv  Rana  (PW-2)  and  Yash  Pal  (PW-3)  that  he  has  been  

stabbed by the accused.  Immediately thereafter he was given  

first aid and after arranging for a three wheeler he was taken to  

the hospital where he could not be given any treatment and,  

therefore, he was taken to the Zonal Hospital, Mandi where he  

died.  It is also established from the record that immediately  

thereafter, the incident was reported to the police.   

12.One of the contentions which was raised by the respondent was  

about  Gagnesh  Kaushal  (PW-1)  first  going  to  the  hospital  

instead of going to the police station.  According to him, the  

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said conduct was not natural in as much as the police station is  

located in between the hospital  and the place of occurrence.  

The  aforesaid  stand  of  the  accused-respondent  also  found  

favour with the High Court.  We, however, find no merit in such  

contention for the reason that when a person receives an injury  

and  is  still  alive  it  is  the  natural  conduct  of  the  person  

accompanying  him  to  see  that  his  life  could  be  saved.  

Therefore, the first endeavour is always to take the person to  

the  hospital  immediately  so  as  to  provide  him  medical  

treatment and only thereafter report the incident to the police.  

Every minute was precious and, therefore, it is natural that the  

witnesses accompanying the deceased first tried to take him to  

the  hospital  so  as  to  enable  him  to  get  immediate  medical  

treatment. Such action was definitely in accordance with normal  

human conduct and psychology. When their efforts failed and  

the deceased died they immediately reported the incident to the  

police.  In fact, it was a case of quick reporting to the police.  

13.The  accused  also  took  up  a  plea  of  alibi.   The  trial  court  

disbelieved the said plea of alibi for which reasons are given in  

the judgment of the trial court.  According to us, the aforesaid  

plea  of  alibi  is  without  any  merit  as  the  presence  of  the  

respondent  on  the  date  of  the  incident  at  the  place  of  

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occurrence is conclusively proved as Gagnesh Kaushal (PW-1),  

Sanjiv  Rana  (PW-2)  and  Yash  Pal  (PW-3)  have  categorically  

stated in their evidence that the accused-respondent had gone  

to the room where they were having a party at about 10.30  

p.m.  Therefore, the aforesaid plea of alibi has no basis at all.   

14.There is another submission of the counsel appearing for the  

respondent who submitted before us that the order of acquittal  

should not be interfered with as no independent witness was  

examined.   It  was  submitted  by  him that  the  driver  of  the  

three-wheeler and also the brother of the deceased who had  

gone to the hospital were not examined.  We find no reason as  

to why and how the evidence of the aforesaid two persons was  

relevant.   The  brother  of  the  deceased  went  to  the  hospital  

where the deceased was being given medical  treatment and,  

therefore, whatever he has heard of the occurrence was from a  

third party and was, therefore, hearsay.  So far as the driver of  

the three-wheeler is concerned, he only carried the deceased to  

the hospital and, therefore, his evidence was also not material.  

15.Gagnesh  Kaushal  (PW-1),  Sanjiv  Rana  (PW-2)  and  Yash  Pal  

(PW-3)  are  the  natural  witnesses  who  have  categorically  

deposed about the involvement of the accused in the incident.  

The blood stained knife was also recovered at the instance of  

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the  accused  from  his  house  on  the  basis  of  the  disclosure  

statement made by the accused-respondent.  When we consider  

all the evidence that stand out and when they are co-related it  

is  established  that  the  accused-respondent  had  stabbed  the  

deceased in his chest when he was going out of the room after  

opening  the  door  to  urinate.   As  a  result  of  the  said  injury  

received at the end of the accused, the deceased died in the  

hospital.   

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.

   ………………………..J.

                    [S.B. Sinha]

  ...………………………J.

       [Dr. Mukundakam Sharma]

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New Delhi,

May 6, 2009

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