Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Government Appeal (Against Acquittal) No. 1172 of 2001 (Old No. 3024 of 1982) The State ………………… Appellant Versus 1. Om Prakash Sundariyal (Since deceased) Constable, Police Out Post Surai Thota, Police Station, Joshimath, District Chamoli. 2. Sundar Lal Koli (Since deceased) Constable, Police Out Post Surai Thota, Police Station, Joshimath, District Chamoli. 3. Bhagel Singh Jatava, Constable Police Out Post, Malari, Police Station, Joshimath, Distt. Chamoli. …………. Respondents Mr. H.C. Pande, Addl. Government Advocate for the appellant-State. Mrs. Pushpa Joshi, Advocate for respondent No.3. Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble Prafulla C. Pant, J. Dated: July 05, 2006. [Per Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 378 of the code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against judgment and order dated 03.09.1982, passed in Session Trial No. 16 of 1981, by the then learned Sessions Judge, Chamoli, whereby the accused 1 / respondents namely Om Prakash, Sundar Lal and Bhagel Singh Jatava have been acquitted of the charge of offence punishable under Section 323/34 and under Section 302 / 34 of the Indian Penal Code, 1860 (for brevity hereinafter I.P.C.). This appeal against acquittal was originally filed before the Allahabad High Court in December 1982. The leave was granted and appeal was admitted on 26.05.1983 by said Court. Thereafter, this appeal has been received by transfer by this Court, for its disposal, under section 35 of the U.P. Re-organization Act, 2000. 2) We heard learned counsel for the parties and perused the entire evidence on record. 3) Prosecution story, in brief, is that Bus No. U.T.S./ 461 of the Garhwal Motor Owners Union Limited started from Joshimath on 12.08.1981, at 3:00 P.M., for Malari with Gaje Singh (deceased) as its driver and P.W. 9, Balbir Singh (injured) as conductor. The accused / respondents namely constable Om Prakash and constable Sundar Lal, boarded the said Bus from Surai Thota at 4:00 P.M. On being asked by the conductor to purchase the tickets, the accused / respondents hesitated in making the payment and after a lot of persuasion, they made the payment but threatened the driver and conductor of the Bus that they would have to face the consequences for the same later on. The Bus reached Malari at 6:45 P.M. Accused / respondents Om Prakash and Sundar Lal got down from the Bus. From Malari the Bus proceeded towards Special Police Force Camp situated towards Joshimath. Accused / respondent Om Prakash stopped the Bus near the Police 2 outpost Malari and challenged that he would not allow the Bus to proceed from there after 8:00 P.M. Gaje Singh (deceased) insisted to drive the Bus further. At about 11:30 P.M., after taking their dinner, Gaje Singh (deceased) and P.W. 9, Balbir Singh (injured) again started the bus journey from aforesaid Camp to Bus Station Malari. When they reached near a furlong away from the Police Outpost, accused / respondents Om Prakash, Sundar Lal and Baghel Singh stopped the Bus and assaulted both Gaje Singh (deceased), driver of the Bus, and P.W. 9, Balbir Singh (injured), conductor of the Bus. The driver and conductor fell unconscious. On the next morning when conductor Balbir Singh (P.W. 9) regained consciousness he drove the Bus to Bus Station Malari taking the injured driver in it. There, he told Murkhalya Singh (P.W. 5) about the fact that police constables have beaten them. From there, on 13.08.1981, driver Gaje Singh was taken to Joshimath with the help of Special Police Force personnel and was admitted in Primary Health Centre. Dr. D.P. Purohit (P.W. 2) recorded the injuries of Gaje Singh on that very day i.e. 13.08.1981, at about 5:05 P.M. However, Gaje Singh succumbed to the injuries received by him at about 8.30 P.M. On 15.08.1981, Dr. D.N. Paudiyal (P.W. 1) conducted autopsy, at about 9:10 A.M., on the dead body of the deceased. Meanwhile, Dr. D.P. Purohit (P.W. 2) examined the injuries of injured Balbir Singh (conductor of the Bus), on 14.08.1981, at about 3:30 P.M. The First Information Report of the incident was lodged on 13.08.1981, at about 7:05 P.M., by Bharat Singh Kathait (P.W. 3), the Station Incharge of Garhwal Motor Owners 3 Union Limited, Joshimath. On the basis of said report Head Constable Anand Mani (P.W. 8) prepared the check report (Ext. A -14) and made necessary entry in the general diary (a copy of which is Ext. A -15). The crime was investigated by P.W. 11, Geeta Ram Sharma, the then Station Officer of Police Station Joshimath. He prepared the inquest report (Ext. A -10), sketch of dead body (Ext. A -11), police form No. 13 (Ext. A -12), site plan (Ext. A - 20) and recorded the statement of the witnesses and submitted charge sheet (Ext. A -23) against all the three accused namely, constable Om Prakahs, constable Sundar Lal and constable Bhagel Singh, before the concerned Magistrate. 4) The learned Magistrate on receipt of charge sheet, registered the same, and after providing necessary copies of the papers to the accused, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions. The learned Sessions Judge, after hearing the prosecution and the defence, framed charge against all the three accused / respondents of the offence punishable under Section 323 read with Section 34 of the I.P.C. and the offence punishable under Section 302 read with Section 34 of the I.P.C. All the accused/respondents pleaded not guilty and claimed to be tried. 5) On this, the prosecution got examined P.W. 1, Dr. D.N. Paudiyal, who conducted the postmortem examination on the dead body of the deceased; P.W. 2, Dr. D.P. Purohit, who examined the injuries of conductor Balbir Singh (P.W. 9); P.W. 3, Bharat Singh Kathait (informant); P.W. 4, Hukum Singh Kathait; P.w. 5, Murkhalya Singh; 4 P.W. 6, Darban, witness of the preparation of inquest report; P.W. 7, Sudhir Kumar, before whom identification parade of accused Sundar Lal was conducted; P.W. 8, Head Constable Anand Mani, who prepared the check report; P.W. 9, Balbir Singh, an injured eye witness; P.W. 10, Constable Narain Singh and P.W. 11, Geeta Ram Sharma, Constable and C.W. 2, Kotwal Singh, both personnel of Special Police Force, were also examined by the court. The entire oral and documentary evidence was put to the accused / respondents under Section 313 of Cr.P.C. regarding which in their reply, the accused / respondents alleged that they have been falsely implicated in the case and they do not know about how Gaje singh (deceased) and Balbir Singh (P.W. 9) got injured. No witness was examined on behalf of the defence. The trial court, after hearing the learned Public Prosecutor and learned Counsel for the accused persons found none of the accused persons guilty of the charge framed against them and giving them benefit of doubt, acquitted all the three of the charge framed against them. 6) During the period of appeal, accused / respondents Om Prakash and Sundar Lal have died. As such, appeal as against both of them stands abated. 7) Before further discussions, it is pertinent to mention here, the ante mortem injuries found by P.W. 1, Dr. D.N. Paudiyal, at the time of conducting postmortem examination, on 15.08.1981, at 9:10 A.M. The postmortem 5 examination report (Ext. A -1) shows following ante mortem injuries on the person of the decease: i) Contusion 2 cm X 1½ cm over forehead midline, on cutting ecchymosis present. ii) Abraded contusion 4 cm X 3 cm over right shoulder, on cutting ecchymosis present. iii) Abraded contusion 8 cm X 6 cm over right side abdomen 3 cm right to umbilicus, on cutting ecchymosis present. iv) Abrasion 2 cm X 1 cm over left elbow. v) Abraded contusion 3 cm X 2 cm over right knee, on cutting ecchymosis present. vi) Abrasion 3 cm X 1 cm over left shin. The Medical Officer also found omentum having tear measuring 8 cm X 4 cm with ruptured omental blood vessels. The middle portion of the mesentery was also found having lacerated tear with through and through hole 10 cm X 6 cm with rupture of the mesentere article and veins. According to the Medical Officer, who conduced the postmortem examination, the death of Gaje Singh was caused due to shock and haemorrhage as a result of injury to the mesenteric and omental blood vessels. 8) The injuries found on the person of injured Balbir Singh (P.W. 9), conductor of the Bus, recorded in the injury report per memo Ext. A -5, by Dr. D.P. Purohit (P.W. 2) on 14.08.1981, at 3:30 P.M., in Primary Health Centre, Joshimath, is as under: i) Contusion 4 cm X 3.8 cm over left upper and left lower eyelid. The eyelid was swollen with bluish colour and the conjunctiva was reddish. 6 ii) Abrasion on left side of nose 1 cm below and laterally from the root of nose. iii) Abrasion 1.5 cm X 1 cm on right side of nose 4 cm below the root of nose. It was obliquely placed and was scabbed. iv) Contusion 3 cm X 1 cm on right upper eyelid. Bluish in colour. v) Abrasion 2 cm X 0.5 cm on right eyelid. It was horizontally placed and was scabbed. vi) Abrasion 0.5 cm X 0.3 cm in right side of face 1 cm below right maxillary prominence. It was obliquely placed and was scabbed. vii) Abrasion 1.5 cm X 1 cm on left maxillary prominence. It was obliquely placed and was scabbed. 9) It is important to note that C.W. 1, Ramesh Chand and C.W. 2, Kotwal Singh, the Special Police Force personnel have not corroborated the statement of P.W. 9, Balbir Singh on the point that the accused / respondent boarded the Bus and had altercation with the driver and conductor of Bus bearing registration No. U.T.S. / 461. The corroboration of P.W. 9, Balbir Singh is required for the reason that none of the accused / respondents are named in the First Information report. On examination of the injury report (Ext. A -2) of Gaje Singh, recorded before his death, it is apparent that he was brought by accused / respondents namely Om Prakash and Bhagel Singh for being admitted in the Hospital. Had they been involved in the crime they would not have taken the deceased to Hospital for treatment. 7 10) The supplementary report of the Medical Officer, which is part of Ext. A -2, shows that Gaje Singh expired at 8:30 P.M. on 13.08.1981 due to sudden cardio respiratory failure, while the postmortem report (Ext. A -1) shows that the cause of death was due to ‘shock and haemorrhage as a result of injury in the mesentery and omental blood vessels’. 11) P.W. 9, Balbir Singh in his examination has not named accused / respondents Bhagel Singh with those with whom he had a quarrel on insisting to purchase the ticket in the Bus. Only this much has been stated that with accused / respondents Om Prakash and Sundar Lal, there was third person who was identified by him n the identification parade and in the court, s such, there is reasonable doubt as to the motive on the part of the part of the accused / respondent Bhagel Singh to commit the offence charged against him. 12) For the reasons as discussed above, we are of the view that since there are reasons on record creating reasonable doubt on the prosecution story, as such, in appeal against acquittal, even if two views can be said to have been possible, it is not just and proper to reverse the finding of acquittal recorded by the trail court. Therefore, the appeal against acquittal is dismissed. (Prafulla C. Pant, J.) (Rajeev Gupta, C.J.) Dt. July 05, 2006. H.Negi