IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 472 of 2002 Date of Decision: 5th August, 2011 State of Himachal Pradesh Appellant Versus Raju & another Respondents Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. Vivek Thakur, Additional Advocate General. For the respondent: Mr.Narender Sharma, Advocate. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 25.9.1996, accused was put to trial. In terms of judgment dated 6.03.2002, passed by learned Sessions Judge, Solan , H.P., in Sessions case No.4-S/7 of 1998 titled as State of H.P. vs. Raju & others, accused (respondents herein) stand acquitted of the charged offence. 2. It is the case of the prosecution that on 25th September, 1996 a wireless message was received at Police Station, Kandaghat that the accused had Whether the reporters of Local Papers are allowed to see the Judgment? 2 committed offences punishable under Sections 323, 452, 504 and 506, I.P.C., in District Solan and were travelling in a Vehicle (Van) No.CHK-5876 towards Kandaghat side. H.C. Bhupender Kumar (PW-4) and Inspector Bhagat Singh (PW-10) were present at Saproon bye-pass, Solan, in connection with the investigation of some case. They saw the Van and signalled the driver to stop, but instead of stopping the Van the driver proceeded towards Barog side. They informed Police Stations at Dharampur, Parwanoo and Control Room at Solan through wireless messages. Also they chased the Van on a motorcycle. PW-10 was driving the motorcycle at that time. When they reached near Deonghat they saw the Van on the main road in a stationary position for the reason that there was a traffic jam. Inspector Bhagat Singh drove the motorcycle and parked it in front of the Van. However, accused Raju who was driving the vehicle tried to run over the motorcycle with an intention of murdering Inspector Bhagat Singh, who miraculously escaped himself. At that time all the accused persons sitting in the vehicle were apprehended by Shri Bhagat Singh. They disclosed their name to be accused Raju, who was driving the Van and its occupants accused Yash Pal, accused Dharam Pal and accused Bholla Singh. They had also 3 consumed alcohol. The incident took place at about 7.30 p.m. on 25.9.1996. Inspector Bhagat Singh (PW- 10) prepared Rukka (Ext.PW-4/A) and sent the same to the Police Station through HC Bhupender Kumar (PW- 4). HC Hari Singh (PW-7) recorded FIR No. 220/96 (Ext.PW-7/A) dated 25.9.1996 at Police Station Solan. SI Phool Chand (PW-8) carried out the investigation on the spot after visiting the spot on 25.9.1996 and the next day. Dharam Raj (PW-1) prepared mechanical report (Ext.PW-1/A) and Gurcharan Singh (PW-2) took photographs (Ext.PW-2/A and Ext.PW-2/B) of the vehicles at the spot. The incident was allegedly witnessed by independent witnesses Rakesh Kumar (PW-3) and Shri Nand Lal (PW- 5). Their statements were also recorded by the Investigating Officer. Accused persons were got medically examined from Dr.R.P.Sahani (PW-6) and Dr.S.K.Aggarwal (PW-11), who found the accused to have consumed liquor but not in an intoxicated position. 3. With the completion of investigation, challan was presented in the Court for trial. Accused were charged for having committed offences punishable under Section 307 read with Section 34, IPC and Sections 182 and 185 of the Motor Vehicles 4 Act, to which accused did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 11 witnesses. During trial accused Dharam Pal and Bholla Singh, were declared Proclaimed Offenders and hence trial proceeded against the other two accused persons and statements of these persons were recorded under Section 313, Cr.P.C. 5. Courts below acquitted the accused (present respondents) of the charged offence, hence the present appeal. Prosecution has to prove by leading clear, cogent, convincing and reliable material and evidence that the accused hatched a conspiracy and intentionally attempted to cause death of PW-10 by overrunning the Van and at that time they had consumed alcohol exceeding limits of 30 mg. per 100 ml. of blood, as detected by a breath analyzer. 6. For offence under Section 307 read with Section 34, IPC, statements of PW-3, PW-4, PW-5, PW- 8 and PW-10 are relevant. 7. Now independent witnesses PW-3 and Shri Nand Lal (PW-5) who allegedly witnessed the occurrence of the incident at Deonghat in the evening of 25.9.1996 have not supported the prosecution case at all. They were declared hostile 5 and in spite of cross-examination by the Public Prosecutor nothing fruitful could come out in their testimony in support of the prosecution case. In fact they have given a version, which is at variance with that of police witnesses. They were materially contradicted the police witnesses and we feel they have not deposed falsely. According to these witnesses, vehicular traffic had stopped in front of the workshop at Deonghat where PW-5 was employed. Maruti Van i.e. the vehicle in question, was standing in front of the workshop at that time. Police came on the motorcycle and forcibly dragged out the accused persons sitting inside the Van. The Van and the motorcycle were eventually taken away by the police the same day. But, however, next day the same vehicles were brought to the spot and the motorcycle placed in front of the Van and photographs taken. On the other hand, it is the version of PW-10 that after they signalled the driver of the Van to stop at Saproon bye-pass, instead of stopping he proceeded towards Barog. Accordingly they informed Police Stations Dharampur, Parwanoo and Control Room, Solan, through wireless messages. They chased the vehicle for some time and after signalling the driver to stop the same parked the motorcycle in front of the Van. But, however, 6 accused Raju, who was sitting on the driver seat tried to run over the motorcycle driven by PW-10 at that time. 8. According to PW-10 incident took place at about 7.30 p.m. and Rukka sent same day through Head Constable (PW-4). S.I. Phool Chand (PW-8) partly carried out the investigation on the spot on the same day and also the next day. Before we deal with the version of PW-4 and PW-10 we shall first deal with the version of PW-8 who unequivocally has deposed that Maruti Van and motorcycle remained at the spot throughout the night on the road. Noticeably incident took place on the National Highway and judicial notice can be taken of the fact that in the month of September, there is a heavy vehicular traffic on the said road. It is unbelievable that National highway would have been allowed to be partially closed throughout the night as a result of such incident. Further according to PW-8 he had posted Constable Swaran Singh to look after the vehicles throughout the night. Now this person has not been examined in the Court nor is he a cited witness. Why his statement under Section 161, Cr.P.C. was not recorded during investigation is also not evident from the record. This only lends credence to the correctness of the version 7 given by independent witnesses that both the vehicles were in fact taken away by the police and brought back next day only for the purposes of taking photographs and getting the same inspected for the purposes of getting the mechanical reports prepared. 9. PW-1 has unequivocally stated that no damage was caused to the Van in question. There were no marks of any nature in front of the Van either. Now if version of PW-10 is to be believed that the Van was being driven by accused Raju at high speed then obviously, as a result of the said incident, there would have been some dents/ marks on the Van also, which is not the case in hand. 10. Version of PW-10, in our considered view, does not inspire confidence. To begin with he has not placed on record the information which he received on wireless about the accused having committed an offence prior to their coming towards Saproon bye-pass road. There is also nothing on record to corroborate his version that he alongwith PW-4 was present near Saproon bye-pass road at the relevant time. He has also not placed on record any proof to show that he had sent the messages to Police Station, Dharampur, Parwanoo and Control Room, Solan, to the effect that he tried to stop the 8 vehicle but the driver drove away the same towards Bargo side. Significantly he has only identified accused Raju and does not know the names of the other accused persons present in the Court. Undisputedly no test identification parade was carried out by the police. Now if he was not even aware about their names much less identity then how could the police arrive to the conclusion about their complicity in the alleged crime. 11. PW-4 no doubt has supported PW-10 by narrating the prosecution version, but however, in our considered view, he has also left trails of falsehood. He also admits that except for accused Raju he does not know the names of the other accused persons. Significantly he states that when they reached the spot at Deonghat, the Van was already in a stationary position and parked behind a truck and PW-10 parked the motorcycle in front of the Van in between the two vehicles. Now if the Van was already in a stationary position then what was the need for the police to have parked the motorcycle in front of the Van. It is a common case of the prosecution witnesses that there was a traffic jam and all vehicular traffic had come to a halt. PW-4 categorically states that “I cannot state why the motorcycle was placed ahead of vehicle having 9 registration No. CHK-5876 only Inspector namely Bhagat Singh can inform”. This witness admits that the rear light of the motorcycle was also not damaged. This only renders the prosecution version that motorcycle was hit by accused Raju from behind at high speed to be improbable if not false. This witness also admits that lights and the mirrors of the Van were not broken. After all Van was behind a truck and if driven at a high speed would have rammed into the same. Hence, statement of these police officials, not inspiring confidence renders the prosecution version to be highly improbable and the version given by the independent witnesses to be probable and it cannot be said that the accused persons had either any intention of murdering the police officials or damaging the vehicle in any manner. 12. According to the Doctors PW-6 and PW-11 accused Bholla Singh, accused Yash Pal and accused Raju, upon examination were found to be smelling of alcohol, but however, these witnesses do not state that they conducted breadth analysis/ blood test or contents of alcohol exceeding 30 mg. per 100 ml. of blood were detected in their body. 13. In fact PW-11 has categorically opined that accused Raju and Dharam pal had sustained 10 injuries, which only strengthen the version given by independent witnesses that accused persons were actually forcibly dragged out of the vehicle by the police officials and in this process, accused sustaining injuries on their body cannot be ruled out. 14. Thus it cannot be said that prosecution has been able to prove the guilt of the accused, beyond reasonable doubt by producing cogent, convincing and reliable evidence. 15. Accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is made out. Present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. 5th August, 2011 (Sanjay Karol) (C) Judge.