IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 15 of 2002 And Cr. Revision No. 16 of 2002 Date of decision: 10.03.2009 1. Cr. Revision No. 15 of 2002: Ram Paul ….. Petitioner Versus State of H.P. … Respondent 2. Cr. Revision No. 16 of 2002: Naresh Kumar alias Darji … Petitioner Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Ms. Anita Dogra vice Mr. Ramakant Sharma, Advocate. (In both the cases). For the respondent: Ms. Shubh Mahajan, Deputy Advocate General. (In both the cases). V.K. Ahuja, J.: This is a revision petition filed by both the petitioners under Section 397 read with Section 401 of the Code of Criminal Procedure separately against the judgment dated 5.1.2002 passed by the Ld. Sessions Judge, Hamirpur, vide which the appeal preferred by them against the judgment of the Court of Ld. Chief Judicial Magistrate, Hamirpur, holding them guilty under Section 353 read with Section 34 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 I.P.C. and sentenced them to undergo imprisonment for six months each and to pay a fine of Rs.1,000/- each was confirmed. In default, the petitioners were to undergo simple imprisonment for a period of two months each. Briefly stated, the facts of the case are that on 9.9.1993, at 8.30 P.M., a report was lodged with the police by one Rakesh Kumar that he was working as a conductor in Bus N o. HP-24-4513, which was going from Shimla to Dharamshala and the driver was one Nand Lal. It was alleged that the bus started from Hamirpur at 4.00 P.M. and there were about 55 passengers in the bus. He asked the passengers to take the tickets when the bus started and 2-3 boys told him that the are staff members and he asked them to give their identification. Thereafter, they stated that they were having a pass, but they failed to produce any pass. It was alleged that when the bus reached at place known as Mandap at 4.20 P.M., those 2-3 boys started giving abuses to him and gave him beatings with legs and fists and they also tore his bag containing cash. He gave a whistle, got the bus stopped and the driver came to rescue him and those boys also gave legs and fists blows. Driver and the passengers asked them not to do. Those 2-3 boys ran away and from some distance they started throwing stones upon them. On enquiry, the complainant alleged that he learnt the names of those boys and lodged the report. He further alleged that the occurrence was witnessed by the passengers, namely, Samarjit and Jaswinder Kumar and others and thus, it was alleged that the respondents had interfered in performance of their duties by the complainant, conductor of the bus. On this report, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the 3 petitioners under Sections 353 and 506 I.P.C. and they were convicted and sentenced under Section 353 I.P.C., but were acquitted under Section 506 I.P.C. On appeal, those findings were affirmed by the learned Sessions Judge leading to the filing of the present revision petitions. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioners were that the ingredients of Section 353 I.P.C. were not proved. It was also submitted that the identity of the petitioners had not been established from the oral evidence and there was no medical evidence to corroborate the testimony of the complaint and another witnesses. Thus, it was submitted that the prosecution has failed to prove the guilt of the petitioners and findings to the contrary are liable to be reversed. On the other hand, learned Deputy Advocate General had supported the impugned judgment for the reasons given therein. On appraisal of the record of the case, it is clear that there is sufficient evidence on record to show that the complainant Rakesh Kumar was working as a conductor at the relevant time and was deputed on duty on this bus at the relevant time. To prove these facts, there is statement of PW-1 Rakesh Kumar, conductor and PW-5 Nand Lal, driver on record. To substantiate this evidence, there is statement of PW-3 Jai Chand, who has stated that the copy of the duty register and appointment order and posting Ext. PW3/A and Ext. PW3/C were given by him and there is nothing on record to say that these documents are false or these were not taken into possession by the police. This has also not been disputed in cross-examination that the complainant was 4 not on duty at the relevant time. Once some beating is allegedly given to the conductor while performing his duties, the provisions of Section 353 I.P.C. are attracted to the facts and, therefore, there is no substance in the plea that the ingredients of Section 353 I.P.C. were not proved. Coming to the second question raised during the course of arguments that no medical evidence has been produced to corroborate in evidence of complainant as PW-1 Rakesh Kumar and PW-5 Nand Lal that the blows were given to the conductor with legs and fists and stones were subsequently thrown from some distance, but there is nothing on record to show that these had hit the complainant also. Those injuries in question were simple injuries and no medical evidence has been proved on record. The absence of the medical evidence in the facts of the case does not affect the merits of the case, which could have only given corroboration to the statement of the complainant and the driver of the bus. Therefore, there is no merit in the plea that in the absence of medical evidence, the statement of the complainant or the driver cannot be relied upon. The most material question which arises for consideration which regrettably has not been considered by the learned Sessions Judge is as to the identity of the petitioners/accused in the case and as to whether it stood established from the evidence or not. The accused persons cannot be held liable merely by presumption that they may be the persons who had given beatings to the conductor until and unless the identity of the accused is established beyond any reasonable doubt and it is proved that he was the person who gave beatings to the conductor of the bus. To my mind, there is no such evidence on record 5 which could establish the identity of the petitioners beyond any reasonable doubt. Coming to the above point, PW-1 has stated the facts that when he demanded tickets from the accused, they stated that they have got the pass and then stated that they are members of the staff and thereafter, they started giving abuses to him as well as beatings. They gave him beatings and ran away. In regard to the identity, he stated that they were three boys and two of them are accused persons present in Court and one had run away from the spot whom he could not identify. He stated that when the driver came, the accused persons ran away towards forest side and started throwing stones. He also stated that his cash bag was also tore by the respondents at that time. He admitted that he had not cleared the bus at the Bus Stand meaning thereby that he had not issued tickets to all the passengers numbering about 55 when the bus started from Hamirpur. The place in question is at a distance of about 7/8 K.M. from Bus Stand and according to the practice, it was the duty of the conductor to have issued the tickets to all the passengers before the bus started from the Bus Stand. There is nothing on record to show that the accused persons boarded the bus from Bus Stand itself or on way, while the bus had covered a distance of 7/8 K.M. when the occurrence took place. It appears from the evidence that the conductor had asked for a penalty of ten times to be paid since the accused were found without tickets but this could have been done only if he had issued the tickets to all the passengers at the Bus Stand and the accused persons had boarded the bus from the Bus Stand itself. In case they boarded the bus on way, he could have asked for the tickets to be purchased by 6 the accused persons but could not insist upon penalty, which appears to be reason for which the dispute took place. However, coming to the question of identification of the accused persons, he has stated the names of the accused persons were told to him by the passengers and he was not knowing the accused persons personally. He admitted that he had named the accused persons numbering two persons, but could not learn the name of third person. His statement clearly shows that he was not knowing the names of the accused persons and he simply mentioned the names as told to him by the passengers. No such passenger was examined who could depose that he was knowing the accused persons and these were the names of those persons which he told to the conductor of the bus. The said conductor has also not stated about the names of the persons who had identified the accused persons. There is no mention of any description of the accused persons, namely, their height, colour or other distinguishing features at the time of lodging of report to the police Ext. PA. Coming to the statement of other witnesses, the driver has been examined as PW-5, who also stated that he stopped the bus when some boys were giving beatings to the conductor and those 3-4 boys ran away towards jungle and started throwing stones. He has come up with the plea that one boy was apprehended and was taken to Police Chowki, which does not find corroboration from the statement of PW-1 Rakesh Kumar, conductor. He is not even aware about the name of the conductor since he was newly posted. He simply admitted the suggestion that it was the accused persons who have given beatings to the conductor, but he has not stated as to how he identified them or how he was knowing them or where these names were told by him to 7 the conductor at any time. Two passengers have also been examined, who were named in the report also. PW-2 Samarjit has stated that the conductor was issuing tickets and some exchange of words took place at Mandap and the conductor whistled. He came back and saw that the accused persons had run away and he does not know as to who were those persons. PW-6 Jaswinder Singh also named in the FIR, has stated that he was sleeping in the bus at the time of occurrence since his father was ill on the previous night and he was only awakened by the police. No other passenger has been examined to substantiate the prosecution case. It is clear from the above discussion that neither the complainant, conductor of the bus nor the driver of the bus were knowing the accused persons prior to the occurrence. The complainant had mentioned the names of the petitioners as accused on the basis of information given to him by some passengers but none of those persons were examined by the prosecution nor the complainant has mentioned the names of those passengers in his report Ext. PA or the statement made by him in Court. It may be that some passengers may have given the names of the petitioners as being the persons involved but in the absence of any evidence as to how these names ere told or until and unless they are properly identified, the responsibility for the occurrence, if any, cannot be fastened upon the petitioners in the absence of the identification parade, which was necessary in the facts and circumstances of the case. The learned counsel for the petitioner had placed reliance upon the decision in Viswanathan and others Vs. State represented by Inspector of Police, Tamil Nadu, (2008) 5 Supreme Court Cases 354, which shows that their Lordships had 8 referred to the necessity of test identification parade. It was observed that accused 4 to 6 had been arrested on the basis of statements made by co-accused. Neither test identification parade nor any other basis was laid for establishing involvement of accused No. 4 to 6. Prosecutrix could identify only accused 1 to 3 in the Court although accused No. 4 was named by her in the FIR. It was held that conviction of accused No. 4 to 6 (without identification parade or any identification in the Court) solely on the basis of statements made by co-accused was wrong. In such circumstances, when the identity of the accused persons were not known to the complainant or the witnesses and they saw the accused for first time at the spot and later on in Court, the mere fact that they were identified in Court as the persons involved is not sufficient to prove their identity. There is no basis for the names of accused persons, which were given by the complainant in the FIR, in the absence of the statement of the person who gave the information to him about the identity of persons involved therein. The accused persons cannot be held liable by mere possibility that they may be the persons involved in the commission of the crime in the absence of test identification parade, which was necessary in view of the facts and circumstances of the case. There are two other minor contradictions also in the prosecution case. One there is some contradiction in regard to the fact if the driver was also given beatings at that time since the driver has not supported the statement of the conductor when he appeared in the witness box as PW-5. There is also no positive evidence on record to show that the cash bag of the conductor was also torn at that time as 9 stated by the conductor in his statement as PW-1, which has not been corroborated by other evidence. However, the main question for consideration was the identity of the petitioners that they were involved in the case, which has not been established and as such, I am not inclined to hold that the findings of learned Sessions Judge holding them guilty of the charge are sustainable in the eyes of law. In view of the above discussion, I accordingly, hold that the sentence imposed by the learned trial Court and upheld by the learned Sessions Judge is liable to be set aside. The revision petition filed by the petitioners is accepted and the findings recorded by both the Courts below holding the petitioners guilty of the charge and convicting and sentencing them are not sustainable in the eyes of law and as such, they are liable to be set aside. Both the revision petitions are accordingly accepted and the findings recorded by both the Courts below are set aside. Fine, if realized, shall be refunded back to the petitioners after the expiry of the period of appeal. A certified copy of this judgment be placed in the file of Cr. Revision No. 16 of 2002. V.K. Ahuja ) March 10, 2009 Judge (BSS)