High Court of H.P. IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr.A.Nos.75 of 2015 and 227 of 2015.

Reserved on: 4.3.2016.

Date of Decision: April 01, 2016.

1. Cr.Appeal No.75 of 2015.

Atul Thakur …..Appellant.

Versus

State of H.P. ...Respondent.

2. Cr.Appeal No.227 of 2015:

Rajinder Singh Thakur … Appellant

Versus

Atul Thakur and others …Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

Appearing Counsel:

1. Cr.Appeal No.75 of 2015

For the Appellant: Mr. Satyen Vaidya Sr. Advocate

with Mr.Vivek Sharma, Advocate.

For the respondent: Mr.M.A.Khan, Additional A.G.

2. Cr.Appeal No.227 of 2015

For the Appellant: Mr. Anoop Chitkara, Advocate

For the respondent: Mr.M.A.Khan, Additional A.G. for

respondent –State.

Mr. Manoj Pathak, Advocate for

respondent No.2.

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Per Sureshwar Thakur, Judge

Cr.Appeal No. 75 of 2015

This appeal stands directed against the impugned

judgment rendered on 31.12.2014 by the learned Sessions

Judge (Forests), Shimla, District Shimla, H.P. in Sessions

Trial No. 39-S/7 of 2012 whereby the learned trial Court

convicted and sentenced the appellant Atul Thakur to undergo

rigorous imprisonment for five years for commission of

offence punishable under Section 304 Part II of the Indian

Penal Code besides also sentenced him to pay a fine of

Rs.10,000/- and in default of payment of fine, he was

sentenced to further undergo rigorous imprisonment for one

year.

Cr.Appeal No.227 of 2015

2. The instant appeal is preferred by the complainant

against the impugned judgment rendered on 31.12.2014 by

the learned Sessions Judge (Forests), Shimla, in Sessions

Trial No. 39-S/7 of 2012 praying therein that the conviction of

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accused Atul under Section 304-II IPC be modified to that of

conviction under Section 302 IPC. Moreover a prayer has

been ventilated therein of the order of acquittal recorded in

favour of accused Mukesh Thakur, Nitish Sharma and

Sandeep Kumar being also set-aside. However, the State of

Himachal Pradesh has neither preferred any appeal for

reversing the findings of acquittal recorded in favour of

accused Mukesh Thakur, Nitish Sharma and Sandeep Kumar

nor has preferred any appeal for enhancement of sentence

imposed by the learned trial Court upon accused Atul.

Cr.A.Nos. 75 and 227 of 2015

3. The prosecution story, in brief, is that Rajinder

Singh (the complainant) brought the matter to the notice of

the police by recording his statement under Section 154

Cr.P.C. Ext.PW-10/A, wherein he has specifically alleged that

on 27.7.2011, his son Hitesh had left the house on his

motorcycle bearing registration No.HP-63-3235 for computer

course. It is further alleged that he had informed his sister as

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well as his mother that he is going with his friend Akhilesh to

his house and will not return in the night since he had to

attend a party and will not come back during the night and

stayed there. At about 3

O

Clock accused Atul son of Ram

Gopal telephonically informed him that his son was brought to

IGMC who was not feeling well and when he reached IGMC he

found his son lying dead. It is also alleged that he noticed

injuries on stomach, chest, shoulder and other parts of the

body of his son with sharp edged weapon and the blood was

oozing out. His son was wounded by some body with sharp

edged weapon in the intervening night of 27/28.7.2011 and

during that period Atul was also with his son. The information

qua scuffle which allegedly took place near Tunnel was made

in the daily diary and thereafter Investigating Officer along with

other police officials visited IGMC. On the statement of

Rajinder Singh (complainant), the father of the deceased, FIR

was registered.

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4. On conclusion of the investigation into the offence,

allegedly committed by the accused a final report under

Section 173 of the Code of Criminal Procedure stood

prepared and filed in the competent Court.

5. The accused, namely, Atul Thakur and Mukesh

Thakur were charged by the learned trial Court for theirs

committing offences punishable under Sections 302, 201

read with Section 34 of the Indian Penal Code and accused,

namely, Nitish Sharma and Sandeep Kumar were charged by

the learned trial Court for theirs committing offences

punishable under Section 201 read with Section 34 of the

Indian Penal Code, to which they pleaded not guilty and

claimed trial.

6. In order to prove its case, the prosecution

examined as many as 25 witnesses. On closure of the

prosecution evidence, the statements of the accused under

Section 313 Cr.P.C. were recorded, in which they pleaded

innocence. On closure of proceedings under Section 313

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Cr.P.C. the accused were given an opportunity to adduce

evidence in defence which opportunity stood availed alone by

accused Atul by examining DW-1 in his defence.

7. On an appraisal of the evidence on record, the

learned trial Court returned findings of conviction under

Section 304 Part II against accused/appellant, namely, Atul

Thakur whereas it acquitted accused namely, Mukesh Thakur,

Nitish Sharma and Sandeep Kumar qua the offences they

stood charged with.

8. Mr.Satyen Vaidya, learned Senior Counsel

appearing for the appellant/accused/convict Atul Thakur, has

concertedly and vigorously contended qua the findings of

conviction recorded by the learned trial Court standing not

based on a proper appreciation of evidence on record, rather,

theirs standing sequelled by gross mis-appreciation of

material on record. Hence, he contends qua the findings of

conviction being reversed by this Court in exercise of its

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appellate jurisdiction and theirs standing replaced by findings

of acquittal.

9. Mr.Anup Chitkara, learned counsel for the

complainant, has also filed an appeal bearing Criminal

Appeal No.227 of 2015 for modification of judgment of

conviction rendered by the learned Trial Court qua accused

Atul Thakur from Section 304 part II to one under Section 302

IPC. The learned counsel for the complainant has with

considerable force and vigour contended qua the findings of

acquittal, recorded by the learned trial Court in favour of

Mukesh Thakur, Nitish Sharma and Sandeep Kumar standing

not based on a proper appreciation of evidence on record,

rather, theirs standing sequelled by gross mis-appreciation of

material on record. Hence, he contends qua the findings of

acquittal recorded qua them by the learned trial Court being

liable for reversal by this Court, in the exercise of its appellate

jurisdiction and theirs standing replaced by findings of

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conviction and concomitantly an appropriate sentence being

imposed upon the accused/respondents.

10. On the other hand, the learned counsel appearing

for the accused has with considerable force and vigour,

contended qua the findings of acquittal, recorded in their

favour by the Court below, standing based on a mature and

balanced appreciation of evidence on record and theirs not

necessitating any interference, rather meriting vindication.

11. This Court with the able assistance of the learned

counsel on either side, has with studied care and incision,

evaluated the entire evidence on record.

12. In trite, as stands unfolded by the deposition of

two eye witnesses to the occurrence namely, PW -11

Himanshu and PW -12 Manoj Bansal, deceased Hitesh,

accused Atul, Mukesh, Manoj alongwith Himanshu and

Ashutosh had consumed liquor in a party organized by the

deceased in the house of Mukesh where at an altercation

erupted inter se deceased Hitesh and accused Atul spurred by

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the factum of the former smoking in the presence of the

accused which invited an objection from the latter. In sequel

to the altercation, which erupted inter se accused Atul and

deceased Hitesh, sprouted by the factum of deceased Hitesh

smoking in the presence of accused Atul which stood

objected to by the latter, both PW-11 and PW-12 ocular

witnesses to the occurrence unanimously depose of

accused/convict Atul stabbing accused Hitesh with knife

Ext.P-10 recovered under recovery memo Ext.PW-3/B. The

ocular version qua the illfated incident rendered by PW-11

Himanshu vividly communicates the factum of accused

convict Atul striking blows with knife Ext.P-10 on the person

of deceased Hitesh sequelling his demise at IGMC, Shimla.

The deposition of PW-11 is lent amplifying corroboration by

another ocular witness to the occurrence PW-12. PW-12 too

has rendered a deposition qua the ill-fated occurrence bereft

of any intra se contradictions viz-a-viz the deposition qua it

rendered by PW-11. Moreover their respective depositions on

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oath qua the ill fated occurrence are also bereft of any inter

se contradictions occurring in their respective examinations-

in-chief viz.a.viz their respective cross-examinations. In

aftermath both the ocular accounts qua the ill -fated

occurrence acquire formidable evidenciary value. The

formidability of the probative worth acquired by their

respective testimonies gets accentuated by theirs omitting to

in their respective depositions on oath either improve or

embellish upon their previous statements recorded in writing

qua the preeminent fact of accused convict Atul stabbing

deceased Hitesh in their respective presence sequelling his

begetting injuries reflected in Ext.PW-18/A and Ext.PW-23/A.

Lack of any unfoldment on an incisive reading of their

respective testimonies of theirs either embellishing or

improving upon the afore-stated preeminent fact viz.a.viz

their previous statements recorded in writing negates any

inference of their ocular version qua the ill-fated occurrence

standing besmirched with any taint, for belittling their

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corroborative ocular version qua the ill-fated occurrence of its

creditworthiness. In aftermath, the ocular version qua the

incident unfolded by the unblemished testimony of PW-11

and PW-12 fastens an inference of accused/convict Atul

stabbing deceased Hitesh with knife sequelling injuries on his

person reflected in Ext.PW-18/A which injuries ultimately

begot his demise at IGMC, Shimla. The medical evidence

connotative of stab wounds standing perpetrated on the

person of deceased Hitesh stand initially constituted in

Ext.PW-18/A proven by PW-18. Therein on his examining the

person of deceased Hitesh, he has recorded the hereinafter

extracted observations:-

“(i) One stab/incised wound over front of chest

with clear cut margin about 2x1 cm of size;

(ii) Two stab wounds present on the mid

auxiliary left side of the chest with clear and clean

cut margin. One of size 3x1 cm and other 2x1

cms;

(iii) One stab would on upper abdomen of size 3x2

cm;

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(iv) One stab would was present over the left

shoulder with clear cut margins of size 2x1 cm and

one small incised would 1x1 cm present over the

left side of lower chest.”

13. He has in his examination-in-chief unfolded with

candor of injuries delineated in Ext.PW-18/A being sequelable

by user of knife Ext.P-10. In his cross-examination he has

rendered a communication of the Autopsy Surgeon being

alone competent to depose whether one end of the wound

carried clear margins or both the sides of the wounds carried

clear margins or acute ends. He in his cross-examination

has further unfolded the factum of his not standing

capacitated to depose with certainty qua injuries existing on

the body of Hitesh being sequelable by user of knife

Ext.P-10. Now, it is imperative to advert to the testimony of

PW-23, who subjected the body of deceased to postmortem

and prepared Ext.PW-23/A, exhibit where stands proven by

him wherein he has in extenso on his subjecting the body of

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the deceased to post mortem delineated the hereinafter

extracted injuries:-

“(i) Red abrasion 1.1x.2 present over

left eye-brow;

(ii) Red abrasion .8x.2 present over left side of face;

(iii) Circular red abrasion .15x.15 present over right side of

forehead;

(iv) Red abrasion.2x1 on right side of face;

(v) Horizontal incised would 2.4x.1x.1 over right anterior

aspect of neck;

(vi) Red contusion 2x1 cm lateral to injury No.5.

Chest:

(vii) Vertical spindle shape incised wound 2x1x1.5

present over left anterior aspect of thorax;

(viii) Stab wound 1.5x1 communicating with left side

pleural cavity;

(ix) Oblique stitched stab wound 2.5x1 cm present over

left lateral aspect of chest communicating with the left

pleural cavity;

(x) Oblique incised stitched wound 2.5x1x1 cm with acute

ends regular inverted clean cut;

(xi) Incised wound 2x1x.5 was present over antero lateral

aspect of left shoulder;

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Abdomen:

(xii) Incised wound of size 3x2x2 with inverted

regular clean cut margin;

(xiii) Horizontal incised wound with single stitch in

the centre 4x1x1 cm;

Cranium and Spinal Cod:

Pale.

Thorax: Plurae 2.5 liters clotted blood present in the left

pleural cavity.

Left Lung: Incised wound 2.5x1x2 cm was present in the

left lower lobe.

Abdomen: Stomach 500 CC, partially digested food,

mixed with fluid, pungent odor present. Rest pale.”

14. He has ascribed irreversible hemorrhagic shock as

sequelled by ante mortem injuries to the chest and lung of the

deceased to beget his demise. He has also proven Ext.PW-

23/B which records the factum of the injuries occurring on the

body of the deceased being sequelable thereon with the user

of knife Ext.P-10. However, the deposition of PW-23

constituted in his cross-examination unfolding the factum of

injuries, 5,7,8 to 12 and 13 being sequelable only with user of

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double edged sharp weapon arises from the factum of his

deposing qua the margins of the wounds, observed by him to

be existing on the body of the deceased while holding his

post mortem examination, carrying acute ends and clear cut

regular margins. The existence thereof on the body of the

deceased subjected to post mortem examination by him

constrained him to depose of their occurrence thereon ousting

the user of knife Ext.P-10. He has hence in his cross-

examination dispelled the factum of knife Ext.P10 standing

used for infliction of injuries aforesaid noticed by him on the

body of deceased while subjecting it to post mortem

examination or its constituting the weapon, user whereof

begot the injuries delineated by him in his post mortem report

Ext.PW-23/A.

15. The aforesaid expositions by PW -23 in his

deposition constituted in his cross-examination verging upon

his dispelling the user of knife Ext.P-10 in the occurrence of

injuries on the person of deceased Hitesh, has prompted a

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submission on the part of the learned counsel for

convict/accused of their hence occurring a sharp discrepancy

intra se the ocular version qua the ill fated occurrence existing

in the testimonies of ocular witnesses thereto viz.a.viz

medical evidence manifested in the testimony constituted in

the cross-examination of PW-23 wherein he has dispelled the

user of knife Ext.P-10 on the person of the deceased and

obviously its begetting the injuries enumerated in Ext.PW-

23/A, with a concomitant effect of belittling the ocular version

qua the incident enunciated by PW-11 and PW-12 besides as

a corollary shaking the bed rock of the prosecution case

harboured upon their respective testimonies.

16. For reasons afore-stated, the testimonies of the

ocular witnesses to the ill fated occurrence comprised in the

unbesmirched testimonies of PW-11 and PW-12 acquire

formidable evidentiary value. The foisting of primacy to

ocular evidence in the event of an ocular account qua the

occurrence standing not bereft of creditworthiness cannot

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stand either blunted nor would become tenuous, even in the

event of medical evidence comprised in the testimony of the

doctor who subjected the body of the deceased to post

mortem examination overruling as deposed by PW-11 and

PW-12 the user of weapon of offence i.e. knife Ext.P-10 by

accused Atul on the person of the deceased and its user

thereon by him begetting the injuries noticed by him to, on his

conducting an autopsy on his person occurring thereat

especially when the predominant reason which prevailed upon

him for dispelling the user of knife Ext.P-10 for begetting the

injuries noticed by him on the person of deceased on his

subjecting it to autopsy, is of injuries No. 5, 7, 8 to 12 and 13

standing observed by him to carry acute ends and clear cut

regular margins which special characteristics borne by them

stand opined by him to be sequelable by double edged sharp

weapon which Ext.P-10 is not. The opinion formed by PW-23

loses its tenacity rather its effect evanesces spurable from the

factum of both eye witnesses to the occurrence deposing of

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convict/accused Atul repeatedly delivering stab blows on the

person of the deceased. The factum of convict/accused Atul

striking repeated stab blows on the deceased stands

unrepulsed as the learned defence counsel has omitted to

subject both PW-11 and PW-12 to an efficacious cross-

examination qua the facet aforesaid. As a corollary, with

hence an inference of accused convict Atul repeatedly

stabbing deceased Hitesh stands grooved in evidence of

probative worth and vigour, the concomitant deduction which

ensues therefrom, is of with accused convict Atul repeatedly

stabbing deceased Hitesh with knife Ext.P10 as a corollary his

repetitive acts of stabbing the deceased at those places

where wounds were noticed by PW-23 to carry acute ends

and clear cut regular margins renders the aforesaid striking

features borne by the wounds occurring thereon to stand

sequelled by his initially thereon stabbing deceased Hitesh

with sharp end of Knife Ext.P-10, his withdrawing it

there-from where-after he re-stabbed the deceased with the

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like sharp end of Knife Ext.P-10 at the very same place where

injuries No. 5,7,8 to 12 and 13 were noticed in Ext.PW-23/A

by PW-23. Consequently, a tenable explication for the

aforesaid wounds carrying acute ends and clear cut regular

margins stands purveyed. In sequel, the dispelling of user of

knife Ext.P-10 by PW-23 and in its begetting the injuries

afore-stated loses all its formidability. As a sequitur with the

aforesaid explication standing aroused for the discordance

intra se the ocular version qua the ill fated occurrence viz-a-

viz the medical evidence rather wanes the submission of the

learned counsel for the convict/accused Atul of incompatibility

intra-se both the aforesaid pieces of evidence, discounting

the probative worth of the eye witness account qua the ill

fated occurrence. Therefore, there is complete compatibility

intra se the medical evidence vis-a-vis the ocular account

qua the ill fated occurrence whereupon an invincible

conclusion qua the guilt of the accused qua the commission

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of the offence for which he stood charged, tried and

convicted stands clinched.

17. The factum of recovery of weapon of offence i.e.

Knife Ext.P-10 under recovery memo Ext.PW-3/B preceding

whereat a disclosure statement Ext. PW-11/A stood recorded

by the Investigating Officer in the presence of PW-11 and

PW-12, both whereof stand proven by both of them to stand

prepared in their presence, constitutes its efficacious recovery

in the manner ordained by law. In sequel, the proven

recovery of Knife Ext.P-10 at the instance of convict accused

Atul by the Investigating Officer in the presence of PW-11 and

PW-12 amplifyingly fastens immense tenacity to the ocular

version qua the ill fated occurrence besides to the medical

evidence.

18. The learned trial Court had for infirm and tenuous

reasons embedded upon the factum of convict/accused Atul

stabbing deceased Hitesh in a sudden fight in a heat of

passion, proceeded to record findings of conviction qua him

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for his committing an offence punishable under Section 304

part II of the Indian Penal Code. However, even if a physical

fight had occurred between both the deceased and

convict/accused Atul besides even if the duel which occurred

inter se both was in a heat of passion nonetheless the factum

of accused/convict Atul wielding a knife Ext.P-10 whereas

deceased Hitesh standing unarmed did lend an incompatible

empowerment to accused viz-a-viz deceased Hitesh rather

with accused/convict Atul standing armed aborted the duel

which occurred inter se him and deceased Hitesh to be either

free or fair. Only when accused/convict Atul was unarmed as

deceased Hitesh was and took to in a sudden fight or scuffle

which occurred inter se them perpetrate fist and kick blows on

the deceased, yet the fatality of such fist or kick blows may

have exculpated the guilt of accused Atul qua his carrying a

mens rea in his mind to commit murder of deceased rather

would have rendered him amenable to avail the benefit of

Section 304 part II IPC. However, with convict/accused Atul

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standing armed with knife Ext.P-10 hence standing

possessed with a lethal weapon for foisting in him an unfair

leverage besides superiority vis-a-vis deceased Hitesh who

stood unarmed hence rendering the scuffle which occurred

inter se them to be neither equal nor fair, invites a further

inference of especially when he struck repeated blows with

knife Ext.P-10 on vital portions of the body of the deceased,

of his carrying in his mind the requisite mens rea to commit

the murder of deceased Hitesh, dehors the factum of a

sudden scuffle standing erupted inter se both or its eruption

arising in a heat of passion. In aftermath, this Court holds

that the accused/convict Atul is guilty of committing an

offence punishable under Section 302 IPC. In sequel, the

appeal filed by the complainant bearing Criminal Appeal

No.227 of 2015 is partly allowed. The judgment of the

learned trial Court convicting accused Atul for committing an

offence under Section 304 part II stands reversed and

modified accordingly. Criminal Appeal No. 227 of 2015 is

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also directed against the findings of acquittal recorded by the

learned trial Court qua accused Mukesh Thakur, Nitish Sharma

and Sandeep Kumar. However, the findings of acquittal

recorded by the learned trial Court qua accused aforesaid for

theirs committing offences for which they stood respectively

charged by the learned trial Court do not merit any

interference as on a wholesome reading of evidence adduced

on record against them, this Court is of the firm view that the

appreciation of evidence qua them as done by the learned

trial Court does not suffer from any perversity or absurdity nor

it can be said that the learned trial Court in recording findings

of acquittal in favour of the accused aforesaid has committed

any legal misdemeanor, in as much, as, it having mis -

appreciated the evidence on record or its omitting to

appreciate relevant and admissible evidence. In aftermath

this Court does not deem it fit and appropriate that the

findings of acquittal recorded by the learned trial Court qua

them merits any interference. Moreover, the prosecution stood

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possessed with evidence as comprised in the testimony of

PW-2 to canvass for the accused aforesaid committing

offences punishable under Section 201 read with Section 34

IPC. He has in his deposition deposed of the motor cycle

owned by deceased standing parked at 103 tunnel. He has

also deposed of it not bearing any blood stains. It stood

taken into possession under memo Ext.PW-2/A. He has also

in his testimony unfolded the factum of accused/convict Atul

in his presence disclosing of his alongwith accused Mukesh

carrying the deceased to IGMC on Pulsar motorcycle which

bore blood stains. The latter motorcycle was taken into

possession vide memo Ext.PW-2/B. Even if assumingly of

hence the accused concerting to skew the factum of the ill

fated occurrence standing not occurred at Summer Hill,

nonetheless the efficacy, if any, of the deposition of PW-2

whereupon a charge under Sections 302 and 201 IPC read

with Section 34 IPC stood respectively framed against the

accused, who however stood acquitted by the learned trial

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Court, falters rather is blunted by PW-2 deposing in his

cross-examination of his being unaware whether Ext.PW-2/B

stood signatured by accused Mukesh or not besides by the

factum of his deposing therein of his signatures on Ext.PW-

2/B standing obtained at IGMC. In sequel the factum of

recovery of motor cycle owned by the deceased Hitesh

purportedly from 103 tunnel and its bespeaking the factum of

the ill-fated occurrence occurred thereat besides its

constituting a concert on the part of the accused to negate

besides skew the site of occurrence, stands denuded of its

vigour especially when it was found thereat with its keys hence

facilitating an inference of its standing carried thereat at the

instance of the Investigating Officer for falsely arraying

accused Mukesh Thakur, Nitish Sharma and Sandeep Kumar.

Accordingly, the judgment of acquittal rendered by the

learned Court below qua accused Mukesh Thakur, Nitish

Sharma and Sandeep Kumar is maintained and affirmed. The

appeal filed by complainant bearing Cr.Appeal No.227 of

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2015 is dismissed qua accused aforesaid. The conviction of

accused Atul under Section 304 Part-II IPC recorded by the

learned trial Court is modified to one under Section 302 IPC.

19. Let the accused/convict Atul Thakur be heard on

quantum of sentence on 20

th

April, 2016.

(Rajiv Sharma)

Judge

April 01, 2016 (Sureshwar Thakur)

(soni/TM) Judge

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