IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Date of decision: 12.02.2008 Criminal Appeal No. 1399 of 2001 (Old No. 1332 of 1991) A.F.R. (Approved for Reporting) Not approved for Reporting (Initial of Judge) Date: 12.02.2008 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1399 of 2001 (Old No. 1332 OF 1991) (1) Trilok Singh S/o Bhawan Singh (2) Jawahar Singh S/o Bhawan Singh (3) Mahipal Singh S/o Ram Singh All Resident of village Chapdhrao Patwari Kshetra and Tehsil Tharali, District Chamoli. ……………………. Appellants. Versus State ……………………Respondent. Sri M.S. Pal, learned Senior Advocate, assisted by Sri D.N. Sharma, learned counsel for the appellants no. 1 and 2 and Sri B.S. Negi, learned counsel for the appellant no. 3. Sri. Amit Bhatt, learned A.G.A. for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 12.07.1991, passed by learned Sessions Judge, Chamoli at Gopeshwar, in Sessions Trial No. 8 of 1990, whereby the appellants, namely, Trilok Singh, Jawahar Singh and Mahipal Singh are convicted under Section 304/34 read with Section 120-B Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one is sentenced to imprisonment for life. (2) We heard learned counsel for the parties and perused the trial court’s record. (3) Brief facts of the case are that it was day of ‘Shivrati’ on 23.02.1990. On that day there was fair in Dewal. Complainant P.W. 1 Devendra Singh and his brother Laxman Singh (deceased) had also gone there. When complainant was returning from the fair, near a Dak Banglow he saw accused / appellants Trilok Singh and Jawahar Singh on exhortation of accused / appellant Mahipal Singh bearing his brother Laxman Singh (deceased). However, after the incident was over accused / appellants as well as the complainant and his brother went ahead. On the way, near Malgad gorge, a bus bearing registration no. U.S.Y. 3612, was coming from Dewal and going towards Tharali. Laxman Singh (deceased) waived his hand in an attempt to get stopped the vehicle so that he may also board in the bus on his journey to his village. The vehicle was being driven by accused / appellant Trilok Singh, who crushed Laxman Singh under the tyres of the bus. The bus stopped about 50 meters ahead and accused / appellant Trilok Singh and Jawahar Singh got down and ran away. When the complainant took his injured brother Laxman Singh to hospital he was declared dead. The First Information Report (Ext.A-1) of the incident was lodged by complainant P.W. 1 Devendra Singh with Police Out Post Tharali on the very day at about 19.00 hours which is registered as F.I.R. No. 6 of 1990 against Trilok Singh relating to offence punishable under Sections 279/304- A I.P.C. P.W. 7 B.P. Sharma, Station Officer of Police Station Chamoli conducted the investigation. He took the body of the deceased in his possession and prepared inquest report (Ext. A-10), letter to Chief Medical Officer (Ext.A-11) and other necessary papers including site plan. The Investigating Officer also took sample soil and blood stained soil from the spot and prepared (Ext. a-7). The body was sent for post mortem examination. Dr. M.C. Verma conducted the autopsy on the dead body and prepared the post mortem examination report. After completion of the investigation the police submitted charge sheet (Ext.A-12) against the appellants Trilok Singh, Jawahar Singh and Mahipal Singh for their trial in respect of offence punishable under Section 304/34 read with Section 120-B I.P.C. (4) The magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned Sessions Judge after hearing the parties on 03.09.1990 framed charge of offence punishable under Section 120-B and one punishable under Section 304 read with Section 34 of I.P.C. against all the three accused namely, Trilok Singh, Jawhar Singh and Mahipal Singh who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Devendra Singh, complainant and an eyewitness, P.W. 2 Dalveer Singh, an eyewitness, who also lodged a separate report Ext. A-2 with the Police Out Post, Tharali, P.W. 3 Jay Datt Joshi, Head Constable, who conducted the technical examination of vehicle registration no. U.S.Y. 3612, P.W. 4 Khilaf Singh, father of the deceased, P.W. 5 constable Balveer Singh, who prepared check report (Ext.A-4) on the basis of the First Information Report (Ext.A-1), P.W.6 Dr. B.H. Rijvi, who proved the autopsy report (Ext.A-6) and P.W. 7 B.P. Sharma, Investigating Officer. The prosecution story was put to the accused under Section 313 of Cr.P.C. in reply to which the accused / appellants alleged the same to be false and pleaded that they were implicated falsely due to enmity. However, no evidence was adduced in defence. The trial court after hearing the parties found all the three accused, namely, Trilok Singh, Jawahar Singh and Mahipal Singh guilty of offence punishable under Section 304 read with Section 34 and 120-B I.P.C. Thereafter the trial court heard them on sentence and awarded each of the convict imprisonment for life. Aggrieved by said judgment and order dated 12.07.1991, passed by learned Sessions Judge, Chamoli, this appeal was filed by the convicts before Allahabad High Court on 22nd July 1991, where it was admitted. The appeal is received by this Court under Section 35 of U.P. Reorganization Act, 2000, for its disposal. (5) Before further discussions we think it just and proper to reproduce the anti mortem injuries mentioned in the post mortem examination report (Ext.A-6). (i) A lacerated wound size 10x11cm present over left side of the cheek. (ii) A lacerated wound size 17x5cm present over the anterior aspect of left shoulder. (iii) Bony deformity of left side of chest. (iv) Lacerated wound size 5x6cm present over the left elbow joint. (v) Abrasion size 3x4 cm over the anterior aspect of the left wrist. (vi) Bony deformity of left elbow joint. (vii) Lacerated wound size 7x3cm over present over the middle of left palm. (viii) Multiple abrasions present over anterior of right knee. (ix) Abrasions size 5x8cm present over middle aspect of the left leg. On internal examination, the medical officer found left clavicle and 2nd rib to 8th rib fractured. The Doctor also found pleura lacerated. He also found larynx and trachea lacerated and congested. The medical officer Dr. M.C. Verma who conduced the post mortem examination opined in the post mortem examination report that death of the deceased has been caused due to shock and hemorrhage as a result of anti mortem injuries sustained. (6) P.W. 1 Devendra Singh (complainant and brother of the deceased) has stated that on 23.2.1990, he had gone to Shivratri mela at Dewal. His brother Laxman Singh (deceased) had also gone there. When he was coming back from the fair on the way he saw accused appellants Trilok Singh and Jawahar Singh beating his brother Laxman Singh. After the said incident accused / appellants as well as the complainant and his brother went ahead. When reached near Malgad gorge a bust Registration No. U.S.Y. 2612 was coming from Dewal and going towards Tharali. Laxman Singh waived his hand to stop the bus. Accused/appellant Trilok Singh was driving the bus who crushed Laxman Singh on the road. However, according to this witness the bus stopped after 50 meters ahead. Accused Trilok Singh and Jawahar Singh got down from the bus and ran away. P.W. 2 Dalveer Singh is not only an independent eyewitness but also the driver of the bus who alleges that accused / appellants Trilok Singh and Jawahar Singh boarded the Bus before the incident and committed marpeet with him (Dalveer Singh, Driver). He further states that Trilok Singh himself started driving the bus thereafter. This witness nowhere says that intentionally Trilok Singh crushed Laxman Singh under the bus. What he says is that Laxman Singh waived his hand to get the bus stopped but he got crushed under the tyres of the bus. (7) Learned counsel for the appellants argued that had there been any intention to commit culpable homicide on the part of Trilok Singh (appellant) he would not have stopped the bus 50 meters ahead of the place of incident. Even the complainant P.W. 1 Devendra Singh did not allege in the First Information Report (Ext.A-1) that his brother Laxman Singh was intentionally killed by the accused / appellant Trilok Singh that is why initially the report lodged by him was registered for offences punishable under Sections 279 and 304-A I.P.C. Section 279 provides punishment for an offence relating to driving on a public way rashly and negligently endangering the human life. Section 304-A I.P.C. provides punishment for causing death by rash and negligent act. From the averments made in the statements of the witnesses and story narrated in the First Information Report it emerges out that death of Laxman Singh was caused by rash and negligent act on the part of accused / appellant Trilok Singh while the charge sheet was filed by the Investigating Officer after investigation relating to offence punishable under Section 304/34 and one punishable under Section 120-B I.P.C. which provides punishment for culpable homicide not amounting to murder. (8) Statements of P.W. 1 Devendra Singh and P.W. 2 Dalveer Singh read with the post mortem examination report (Ext. a-6) clearly prove on record that accused / appellant Trilok Singh was driving the bus rashly and negligently endangering the human life and also thereby he caused death of Laxman Singh. As such what has been proved on the record is that accused appellant Trilok Singh committed offence punishable under Section 279 and 304-A I.P.C.. Our this finding further gets corroborated from the copy of judgment and order dated 23.07.1991, passed by Motor Accident Claims Tribunal / District Judge, Chamoli, in Motor Accident Claim Case No. 10 of 1990, whereby widow of deceased (Laxman Singh) Meera Rawat was awarded compensation to the time of Rs.2,00,000/-. In said case it was pleaded by the widow of the deceased that her husband died in an accident. (9) As far as accused appellants Jawahar Singh and Mahipal Singh are concerned, the witnesses examined on behalf of the prosecution have said nothing against Mahipal Singh and Jawahar Singh and it is not proved that they had any role in causing the death of the Laxman Singh. There is no evidence on record to establish the common intention on their part with accused / appellant Trilok Singh nor is there any evidence to establish that there was a conspiracy on their part to kill the Laxman Singh for it appears that it was not know to them if Laxman Singh is going to waive his hand to stop the bus on the road. (10) In the above circumstances for the reasons as discussed above we are of the considered view that no charge of offence punishable under Section 304 read with Section 34 I.P.C. or that of Section 120-B I.P.C. is proved against either of the accused / appellants Jawahar Singh and Mahipal Singh. As such we hold that the conviction recorded by the trial court as against the two is liable to be set aside. Even the conviction of accused / appellant Trilok Singh in respect of offence punishable under Section 304/34 I.P.C. read with Section 120-B I.P.C. appears to be wrong as the act committed by him established from the evidence on the record constitutes only offences punishable under Sections 279 and 304-A I.P.C.. Accordingly we hold that accused / appellant Trilok Singh also deserves to be acquitted from the charge of offence punishable under Section 304/34 read with Section 120-B I.P.C., instead he is liable to be convicted under Section 279 and 304-A I.P.C.. We accordingly direct so. Therefore, the appeal of accused / appellants Jawahar Singh and Mahipal Singh is allowed. Their conviction recorded by the trial court is set aside. They are acquitted of the charge of offence punishable under Section 304/34 and 120-B I.P.C.. They are on bail. They need not to surrender. Appeal of accused / appellant Trilok Singh is allowed partly. His conviction recorded by the trial court (Sessions Judge, Chamoli) in respect of offence punishable under Section 304/34 read with Section 120-B I.P.C. is set aside. Instead he is convicted under Sections 279 and 304-A I.P.C.. Accused / appellant Trilok Singh is sentenced to rigorous imprisonment for a period of six months under Section 279 I.P.C. and to rigorous imprisonment for a period of two years under Section 304-A I.P.C.. Both sentences shall run concurrently. The period already spent by him in jail during investigation or trial already spent by him in jail during investigation or trial shall be commuted out of the sentence awarded by this Court. A copy of this judgment be sent to the Sessions Judge, Chamoli at Gopeshwar to make accused / appellant Trilok Singh serve out the sentence awarded by this Court. (Dharam Veer, J.) (Prafulla C. Pant, J.) 12.02.2008 NS