STATE OF HIMACHAL PRADESH Vs. RAKESH KUMAR

JUDGEMENT

(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 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 painters 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 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 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.