IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 2091 of 2001 1. Tulsa Ram S/o Gopal Ram Car Road, Bindukhatta Police Station Lalkuwan, District Nainital. 2. Bhupal Ram S/o Dev Ram Gujar Jhala, Car Road, Bindukhatta, P.S. Lalkuwan, District Nainital. ...…………. Appellants Versus State of Uttaranchal ...…………. Respondent Mr. R.B. Agarwal and Mr. M.K. Agarwal, Advocates for the appellants. Mr. S.S. Adhikari, Brief Holder for the respondent State. Along with Criminal Appeal No. 13 of 2002 Jagdish Arya S/o Bachi Ram Arya R/o Narayan Nagar, Bithoria No. 1, Police Station Haldwani, District Nainital. ...…………. Appellant Versus State of Uttaranchal ...…………. Respondent Mr. R.B. Agarwal and Mr. M.K. Agarwal, Advocates for the appellants. Mr. S.S. Adhikari, Brief Holder for the respondent State. Hon’ble Prafulla C. Pant, J. [ Both these appeal, preferred under Section 374 of 2 the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed against the same judgment and order dated 21.11.2001, passed by learned Additional Sessions Judge / II F.T.C., Nainital, in Sessions trial No. 480 of 1997, whereby the accused / appellants Tulsa Ram, Bhupal Ram and Jagdish Arya are convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.); under Section 364 read with Section 34 of I.P.C. and under Section 333 read with Section 34 of I.P.C. Each one of the convicts (appellants) is sentenced to imprisonment for life (under Section 302 / 34 of I.P.C.); imprisonment for file (under Section 364 / 34 of I.P.C.) and rigorous imprisonment for a period of five years, and further directed to pay fine of Rs. 5,000/- (under section 333 / 34 of I.P.C.). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 04.06.1997, Chandra Mohan Singh Rawat (deceased) Station Officer of Police Station Lal Kuan, District Nainital, was checking registration certificates and driving license of a vehicle on the road, in front of Batra Transport Company. Meanwhile, Sub Inspector Narendra Dev (P.W. 3), Constable Manbir Singh, Constable Ram Kishan Singh (P.W. 2) and Constable Malkhan Singh were on duty near main crossing of Lal 3 Kuan, and getting vehicles parked on one side of the road, so that there may not be traffic jam. When Station Officer Chandra Mohan Singh Rawat (deceased) asked a ‘truckwala’ (Truck Registration No. DL –1GA / 1134) to park his truck on the said of the road, a helper (accused / appellant Bhupal Ram) from the truck told him that when the driver comes back the truck would be moved. Soon thereafter, the driver (accused / appellant Tulsa Ram) of the truck came at 14:10 hours (02:10 P.M.). When he was told by the deceased to park the truck by the side of the road, he got annoyed and alleging that ‘Policewalas’ harass the public, dragged the Station Officer Chandra Mohan Singh Rawat (deceased) physically inside the truck with the assistance of the helpers, and took the truck towards south. On this, immediately Sub Inspector Narendra Dev (P.W. 3) with other policemen chased the truck. When the truck reached near V.I.P. Gate, Station Officer Chandra Mohan Singh Rawat was thrown from the truck through a window and, thereafter, truck was made to run over the person of deceased, with intention to kill him. The chasing policemen in Gypsy immediately get the truck stopped, and apprehended the driver of the truck Tulsa Ram (accused / appellant) and helper Bhupal Ram (accused / appellant No. 2). Accused / appellant Jagdish Arya managed to escape at that time, but his name was disclosed by the persons, arrested on the spot. The injured Station Officer Chandra Mohan Singh Rawat was immediately taken to 4 Base Hospital, Haldwani, for medical treatment by the policemen in Gypsy. During medical treatment on the very day i.e. 04.06.1997, Chandra Mohan Singh Rawat succumbed to the injuries. A first information report (Ext. A –1) was lodged by Sub Inspector Narendra Dev (P.W. 3) with police station Lal Kuan on the very day (04.06.1997) at 16:00 hours against the accused / appellants Tulsa Ram, Bhupal Ram and Jagdish Arya, relating to offence punishable under Section 302 of I.P.C., which was registered as Crime No. 332 of 1997. Investigation was taken up initially by Sub Inspector Jitendra Pal Singh (P.W. 11). The dead body of the deceased was taken into possession by the police on the day of incident i.e. 04.06.1997, at 15:45 hours, and inquest report (Ext. A –3) was got prepared. The police also got prepared sketch of the dead body (Ext. A –4); letter to the Chief Medical Superintendent(Ext. A –5) requesting for postmortem examination; and police form No. 13 (Ext. A –6). The postmortem examination was also conducted on the very day i.e. 04.06.1997, at 04:45 P.M. by Dr. H.C.S. Koranga (P.W. 4), who recorded the ante mortem injuries, and opined that the deceased had died due to shock and haemorrhage, as a result of ante mortem injuries. Autopsy report (Ext. A –2) was prepared by said Medical Officer. On the next day, the investigation appears to have been taken over by Ram Singh Yadav (P.W. 12), In-charge Special Operations Group, Haldwani. He interrogated the witnesses Constable Manbir Singh and Constable 5 Malkhan Singh and got arrested accused / appellant Jagdish Arya, on 08.06.1997. The other two accused / appellants were already arrested on the spot. Later, the investigation was transferred to Dy. Superintendent of Police A.R. Chauhan (P.W. 14), who completed the investigation, and submitted the charge sheet (Ext. A – 17) against all the three accused / appellants namely, Tulsa Ram, Bhupal Ram and Jagdish Arya. 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., appears to have committed the case to the court of Sessions, for trial. Learned Sessions Judge, Nainital on 23.02.1998, after hearing the parties, framed charge of offences punishable under Section 364 read with Section 34; 302 read with Section 34; and 333 read with Section 34 of I.P.C., against all the accused namely, Tulsa Ram, Bhupal Ram and Jagdish Arya. The accused pleaded not guilty and claimed to be tried. On this, the prosecution got examined P.W. 1 Iqbal Chand Batra of ‘Batra Transport’; P.W. 2 Constable Ram Kishan Singh (an eyewitness); P.W. 3 Sub Inspector Narendra Dev (complainant and eyewitness); P.W. 4 Dr. H.C.S. Koranga (who conducted the postmortem examination); P.W. 5 Virendra Singh (witness of preparation of inquest report); P.W. 6 Mazhar Naim (declared hostile); P.W. 7 Constable Ram Singh [who prepared the inquest report and other connected papers (Ext. A –4 to Ext. 6 A –6)]; P.W. 8 Dr. Ajay Mohan of Soban Singh Jeena Base Hospital, Haldwani, where the deceased was taken in an injured condition before his death for treatment); P.W. 9 Head Constable Mahavir Singh (an eyewitness); P.W. 10 Sub Inspector Rajesh Bhartiya (who proved the entries in the general diary and inquest report); P.W. 11 Sub Inspector Jitendra Pal Singh (one of the Investigating Officers); P.W. 12 Sub Inspector Ram Singh Yadav (who took over investigation from the previous Investigating Officer); P.W. 13 Dy. Superintendent of Police Hari Narayan Sharma (since retired) [who further investigated the crime]; and P.W. 14 Dy. Superintendent of Police A.R. Chauhan (who completed the investigation and submitted charge sheet). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. All the three accused pleaded that they have been falsely implicated in the crime. In defence, on behalf of accused D.W. 1 Smt. Radha Rawat, widow of the deceased, and D.W. 2 P.C. Bisht, Advocate were got examined, to show that in a Motor Accident Claim Case, the widow of the deceased, had shown it to be a case of accident. 5) The trial court, after hearing the parties, found all the accused / appellants guilty of charge of offences punishable under Section 302 / 34, 364 / 34 and 333 / 34 of I.P.C. After hearing them on sentence, the trial court sentenced each of the convicts to imprisonment of 7 life (under Section 302 / 34 of I.P.C.); imprisonment of life (under Section 364 / 34 of I.P.C.); and rigorous imprisonment for a period of five years and further directed to pay fine of Rs. 5,000/- (under Section 333 / 34 of I.P.C.). In default of payment of fine the defaulter / convict was directed to undergo further imprisonment for a period of six months. Aggrieved by said judgment and order dated 21.11.2001, passed by Addl. Sessions Judge / II F.T.C., Nainital, in Sessions Trial No. 480 of 1997, accused / appellants Tulsa Ram and Bhupal Ram filed a joint Criminal Appeal No. 2091 of 2001, and accused / appellant Jagdish Arya filed a separate Criminal Appeal No. 13 of 2002. 6) Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the dead body of the deceased Chandra Mohan Singh Rawat, recorded in autopsy report (Ext. A –2) by P.W. 4 Dr. H.C.S. Koranga on 04.06.1997, at 04:45 P.M. The ante mortem injuries are being reproduced as under: i) Crushed injury on post side of left leg (calf) size 28 cm X 10 cm X bone deep. All the muscles, blood vessels, nerves are crushed. There is fracture on left tibia and fibula. ii) Crushed injury over right leg (calf) total 11 stitches, stitches opened and there is crushed injury size 20 cm X 8 cm X muscle and bone 8 deep. All the muscles, bones, blood vessels were crushed. Fracture of right tibia. iii) Traumatic swelling 20 cm X whole lira farium of right thigh, fracture of right femur upper part, clotted blood. iv) Abrasion 4 cm X 9 cm just above the left iliac crust. v) Contusion size 8 cm X 4 cm on the inner side of the right knee. Colour red and brownish. The Medical Officer at the end of the postmortem examination report opined that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries. It is further mentioned by the Medical Officer that as per the hospital memorandum received with the dead body the deceased had died at 02:45 P.M., on that very day i.e. 04.06.1997. 7) From the statement of P.W. 4 Dr. H.C.S. Koranga read with the autopsy report it is established on the record that deceased had died an unnatural death. Now, this Court has to see whether, the accused / appellants abducted the deceased and committed his murder, and it is further required to be seen whether, the deceased who was a public servant while performing his duties, grievous injuries were voluntarily caused to him at the time of incident in question? 8) P.W. 1 Iqbal Chand Batra, an independent witness, examined on behalf of the prosecution, has stated that on 04.06.1997, at about 02:00 P.M., he heard that Station 9 Officer Chandra Mohan Singh Rawat has been picked up by some truckwala and later when he reached near over bridge, he saw that the said police officer was lying in an injured condition and being taken by other policemen in a Gypsy for medical treatment. He further states that he has heard that a truck which was standing near the place where the injured was lying had crushed the officer. He further stated that he cannot identify who were the persons arrested on the spot. The testimony of this witness, to the extent that Chandra Mohan Singh Rawat was picked up and killed is hearsay, as he does not say that he himself witnessed the incident. The only part of prosecution story relating to which he has given a direct eye account is that at the time of incident Station Officer Chandra Mohan Singh Rawat was lying injured near the over bridge and he was being taken in a Gypsy by the policemen to the hospital. As such from his statement as to the involvement of the accused / appellants does not throw any light. 9) P.W. 2 Constable Ram Kishan Singh has stated that on 04.06.1997, Station Officer Chandra Mohan Singh Rawat (deceased) along with Constable Murari Lal and Head Constable Mahavir Singh were busy in maintaining law and order. The witness further states that on Haldwani–Bareilly road there was jam of vehicles, on which Station Officer Rawat asked for extra help of force from the police station. On this, Sub Inspector Narendra Dev (P.W. 3), Constable Malkhan Singh, Constable Manbir Singh also reached at the spot. P.W. 2 Constable 10 Ram Kishan Singh further states that when accused / appellant Bhupal Ram driving truck registration No. DL –1GA / 1134 attempted to turn it towards Bindukhatta which could have cause further jam was directed by the Station Officer Chandra Mohan Singh Rawat to take a turn around, the accused / appellant Bhupal Ram got annoyed and entered into heated exchange of words with Station Officer Rawat. (The story in the first information report does not disclose that truck was driven by Bhupal Ram). According to this witness accused / appellant Tulsa Ram was purchasing some items at the crossing. When Station Officer Rawat asked Bhupal Ram to remove the truck from where it was parked and to take it on the side of the road, Bhupal Ram told the Station Officer that he is only helper and driver of the truck is Tulsa Ram. Meanwhile, Tulsa Ram also got involved into heated exchange of words with the Station Officer, where after, the Station Officer was dragged by the above two with the help of accused / appellant Jagdish Arya inside the truck, and they took the truck towards Kichcha. P.W. 2 Constable Ram Kishan Singh further states that at about 02:10 P.M., when the Station Officer Rawat was taken by the three accused as above, Sub Inspector Narendra Dev (P.W. 3) along with other constables chased the truck in a Gypsy. The witness further told that at V.I.P. Gate of Sanctuary Paper Mill (near over bridge) he saw that Station Officer Rawat was pushed from the truck and thrown on the road, where after, the 11 driver crushed the police officer under the wheels of the truck. According to this witness, the truck was chased and accused / appellants Bhupal Ram and Tulsa Ram were arrested on the spot, while the third accused / appellant Jagdish Arya succeeded in escaping from the place of incident. The witness further states that injured Station Officer Rawat was taken in a government Gypsy by Sub Inspector Narendra Dev to hospital, where he succumbed to the injuries. Lastly, it has been stated by this witness that later Jagdish Arya was also arrested, and by the evening the truck was set on fire by the public in Shantipuri. 10) Above statement of P.W. 2 Constable Ram Kishan Singh gets corroboration from the statement of P.W. 3 Sub Inspector Narendra Dev, who has also narrated the prosecution story in the same manner, and P.W. 9 Head Constable Mahavir Singh. However, P.W. 6 Mazhar Naim, who is a witness of public has not supported the prosecution story, and was got declared hostile. 11) Learned counsel for the appellants argued that it is a case of accident which has been projected as a case of kidnapping and murder by the policemen, as the deceased was a police officer. The argument advanced by learned counsel for the appellants cannot be rejected lightly, for the reason that the ante mortem injuries do suggest that legs of the deceased were got crushed, before his death. As far as the arrest of the accused / appellants Bhupal 12 Ram and Tulsa Ram is concerned, said fact is also proved beyond reasonable doubt, by the prosecution. It is hard to believe that in broad daylight on a busy road the accused / appellants first abducted the deceased took him for some distance (in market area) and threw from the window, and then the truck was made to run over to kill the deceased. As per the prosecution case the truck was being chased by a Gypsy which was normally of a higher speed as compared to the truck. In the circumstances of the case, it is doubtful if Station Officer Rawat (deceased) was picked up inside the truck and then thrown from the window. What appears to be the ring of truth from the statement of the witnesses is that deceased was run over by the truck in which the accused / appellants were sitting. The driver of the vehicle was accused / appellant Tulsa Ram. As such, the negligent act on the part of the accused / appellant Tulsa Ram is covered under Section 304-A of I.P.C. i.e. causing death by negligence, which is punishable with imprisonment for a period of two years, with or without fine. The helpers namely, accused / appellants Bhupal Ram and Jagdish Arya cannot be said to have any prior meeting of mind in committing any act by the driver i.e. accused / appellant Tulsa Ram. Since, the act proved on the part of the accused / appellant Tulsa Ram is a negligent act, it cannot be said to be an act of voluntarily causing grievous injury to the deceased while on public duty, punishable under section 333 of I.P.C. 13 12) Having gone through the evidence on record carefully, we are of the view that the trial court has erred in law in rejecting the evidence of D.W. 1 Radha Rawat, widow of the deceased, and D.W. 2 P.C. Bisht, Advocate, in the present case. D.W. 1 Radha Rawat, widow of the deceased, has admitted that she has filed a claim petition before the motor accident claims Tribunal, after death of her husband in the incident in question. D.W. 2 P.C. Bisht, Advocate has corroborated the fact that on the instructions of Smt. Radha Rawat he filed claim petition before the motor accident claims Tribunal, which is registered as Case No. 47 of 1998. In these circumstances, it cannot be said that the prosecution has proved the charge of offences punishable under Section 302 / 34 of I.P.C.; 364 / 34 of I.P.C.; and 333 / 34 of I.P.C. against any of the accused / appellants. The only offence proved on the record is one punishable under Section 304-A of I.P.C., that too against the accused / appellant Tulsa Ram. 13) For the reasons as discussed above, Criminal Appeal No. 13 of 2002 filed by appellant Jagdish Arya deserves to be allowed, and the same is allowed. The conviction and sentence recorded against the accused / appellant Jagdish Arya under Section 302 / 34, 364 / 34 and 333 / 34 of I.P.C., is hereby set aside. He is acquitted of the charges. He shall be released forthwith, if not wanted in connection with any other crime. The Criminal Appeal No. 2091 of 2001, is 14 allowed partly. Conviction and sentence recorded as against the accused / appellant No. 2 Bhupal Ram by the trial court, is set aside. He is also acquitted of the charge of offences punishable under Section 302 / 34, 364 / 34 and 333 / 34 of I.P.C. He shall be set at liberty, if not wanted in connection with any other crime. As far as accused / appellant Tulsa Ram is concerned, his conviction and sentence recorded by the trial court relating to offences punishable under Section 302 / 34, 364 / 34 and 333 / 34 of I.P.C., is set aside. He is convicted under Section 304-A of I.P.C., and sentenced to rigorous imprisonment for a period of two years. The lower court record be sent back to the trial court. If, accused / appellant Tulsa Ram has already served out the period in jail more than two years, he need not to be taken into custody, again. In case, he (Tulsa Ram) has served period in jail less than two years, he shall be taken into custody immediately to make him serve out the remaining part of the sentence. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. May 07, 2009. H. Negi