Surinder Singh, J.
1. The respondents were put on trial and acquitted of the offences under Sections 323, 365 and 302 read with Section 34 of the Indian Penal Code for allegedly abducting Atul Puri, causing simple injuries to Ravi Kumar and Yog Raj Gupta and causing the death of Rajneesh Singh.
2. In brief, the prosecution story, as emerges from the prosecution witnesses can be stated thus: Harvinder Singh was the driver and Suraj Singh respondent was conductor of bus No. HIE-1387 of H.R.T.C. Kullu depot running between Jammu and Manali. S/Shri Ravi Dogra (PW3), Yog Raj, Vikas Kalia, Jagat Ram, Balram Kumar (PW2), Nand Chand, Atul Puri and Rajneesh (deceased) were B.Sc. students of the Agriculture University Palampur and they used to stay in the campus hostel. On 14.11.1991, after watching the movie, in the evening, they went to a shop where the cricket match between India and Australia was being telecast. It ended around 11 p.m. All the above named students waited for the bus, to take a lift up to their campus. The aforesaid bus reached there at about 11.30 p.m. They boarded the bus. The conductor demanded the fare of Rs. 5/- per head up to Baijnath being a long route bus, as against 50 paisa per passenger up to the campus gate. The aforesaid students objected to the alleged unfair demand. However, the matter was settled at the rate of Re. 1/- per person. The fare amount was paid by Vikas Kalia. When the bus reached near the campus gate, it was stopped. The said students alighted from the bus one by one but Atul Puri was not allowed to get down from the bus by Suraj Singh, conductor and the bus started moving ahead. Seeing this, all the seven students who had alighted near the campus-gate clung to the back portion of the moving bus. Harvinder Singh respondent took the bus to Baijnath bus-stand. Both the crews of the bus and the bus passengers started beating all the students. Ravi Singh (PW3) and Yog Raj were allegedly given beatings with the iron rods by Harvinder Singh and Suraj Singh. All of them ran hay-way to save their lives. Rajneesh (deceased) was allegedly caught hold of by 2-3 persons, they banged him against the shutter of a shop. After about one hour all the students except Rajneesh Singh returned to the bus stand and thereafter went to Paprola Railway station and kept sitting in the railway boggie. When they came to know that the train would leave at 5.30 a.m. then they returned to the University campus in a bus, but they did not find Rajneesh even there. Thus the matter was reported to Shri S.K. Pathania (PW 18), the then Student's Welfare Officer. He took them to the Police Station, Baijnath. On 15.11.1991, S/Shri Ravi Singh (PW 3) and Jog Raj lodged a missing report (Ext. PC) of Rajneesh, in police station Baijnath. But the Baijnath police found it a case falling under the jurisdiction of Palampur police station, therefore, the said complaint was forwarded to that police station, for investigation where an FIR No. 357/1991 was registered on its basis, under Sections 323, 365 read with Section 34 of the Indian Penal Code.
3. The police started searching for Rajneesh Singh. The University authorities announced the award of Rs. 500/- to the person supplying the information about Rajneesh Singh. A poster Ex.DB was also published and circulated.
4. On 19.11.1991, at about 6.15 p.m. Kishori Lal, Pradhan of Gram Panchayat Baijnath informed the police telephonically that he was told by some children who were playing nearby that a dead-body was lying in the septic tank of Milap Chand (PW8), which was under construction. To this effect, Rapat Ex. PZ was recorded in Police Station Baijnath. The police informed their superior officers, SDM, Palampur and University authorities and visited the spot. The dead-body was taken out from the septic tank. Shri S.K. Pathania (PW 18) and Balram Kumar (PW 2) identified it to be the dead-body of Shri Rajneesh Singh. The police on the search of the dead-body found the currency note of Rs. 20/- and coins of Rs. 4/- alongwith some documents and bunch of keys from the pocket of the pant of Rajneesh, which were taken into possession vide memo Ex.PG. The inquest report Ex. PT was prepared in presence of the witnesses and the dead-body was sent for post-mortem examination. On 23.11.1991, the site plan of the place where the dead-body was found on 19.11.1991 was also prepared by the police.
5. Dr. C.M. Rao (PW 28) conducted the astopsy on 20.11.1991 which ended at 1 p.m. He took thirteen photographs Ex. PBB/2 to 14. The doctor found contusions, nail marks, abrasions and other ante-mortem injuries on the dead-body, which have been detailed in the post-mortem report Ex. PBB. In the opinion of the doctor, the death was due to asphyxia by a combination of burking (smothering and pressure over chest) and throttling. The doctor had also opined that the time between the injury and death was few minutes and between death and postmortem 4 to 6 days.
6. The police recorded the statements of the witnesses. The respondents were arrested. The test identification parade, to identify respondent Susheel Kumar was also conducted in the presence of Shri S.S. Garg, Judicial Magistrate (PW 21). The challan was presented against the respondents in the Court for their trial.
7. The respondents were charge-sheeted for the offences aforesaid. They pleaded not guilty and claimed trial. The prosecution examined their witnesses to prove the case against the respondents, but the learned trial Court did not rely upon the prosecution evidence, and acquitted the respondents. As such, their acquittal has been assailed by the State in this appeal.
8. According to Shri P.K. Sharma, learned Additional Advocate General, it stands proved on record that all the eight students including the deceased Rajneesh, had boarded the bus in question from Palampur for going to the university campus. It also stands proved that the aforesaid students objected to the fare which was demanded by respondent Suraj Singh conductor. Further, Atul Puri was not allowed to get down from the bus at the campus gate with the result his colleagues clung to the bus and the respondents gave beatings to them at Baijnath bus stand resulting into the injuries of Ravi Singh and Balram and both of them had seen the respondents catching hold of the deceased and banging him against the shutter of the shop. Thereafter his dead-body was found in the septic tank at a distance of about 80 feet from the Baijnath bus stand. The ante-mortem injuries were found on the dead-body and the respondent Susheel was identified by Balram PW before the Magistrate during the identification parade, therefore, the evidence on record shows the complicity of the respondents with the alleged crime. Accordingly, the acquittal of the respondents passed by the learned trial Court deserves to be converted into conviction.
9. Contra, the learned Counsel for the respondents supported the impugned judgment of acquittal.
10. We have given thoughtful consideration to the rival contention of the parties and have carefully gone through the record.
11. Admittedly, few students boarded the bus in question to go up to the campus gate, at about 11.30 p.m. The defense of the respondents is that Rajneesh Singh (deceased) was not one of those students who had boarded their bus. Now let us examine as to what the prosecution witnesses have deposed in the Court and whether the findings of acquittal recorded by the learned trial Court are born out from the evidence on record.
12. According to PW-2 Balram Kumar, after seeing the movie on 14.11.1991, at about 10.30 p.m. they went to one of the shops in the Bazaar where the cricket match between India and South Africa was going on the Television. At that time, Yog Raj Singh, Vikas Kalia, Rajneesh Singh (deceased), Ravi Dogra (PW 3) Jagat Ram, Naval Chander and Atul Puri were with him. When the match was over at about 11.15 p.m., they waited for the bus for going to the University. One HRTC- bus which was running between Jammu and Manali arrived there around 11.30 p.m. which was being driven by Harvinder Singh, respondent. As they wanted to board the bus, they were not allowed to get in, on the ground that it was a long route bus and would not stop at the Agriculture University, but they made special request to the driver to take them up to the University campus and the driver agreed. All of them boarded the bus. Respondent Suraj Singh who was the conductor demanded the fare at the rate of Re. 5/- each up to Baijnath, whereas, it was only 50 paisa per passenger up to the University gate, but after pleading with him, he charged Rs. 1/- per passenger. Vikas Kalia paid Rs. 8/- and the conductor issued the tickets. The bus was stopped at the University gate. All except Atul Puri got down from the bus. The bus started moving fast, seeing this all of them hanged up themselves behind the bus and the driver started taking the bus in a zigzag manner with jerks. Another bus plying on Chandigarh-Baijnath was behind their bus. They were taken to Baijnath bus stand. When they got down, they enquired from the conductor and driver as to why they were not allowed to get down at the University gate. On this, the passengers started shouting. Some persons who had gathered there, started beating them. He could not identify the assailants. One of the drivers at the bus-stand, (whom he had identified as Susheel Kumar, in the Court) caught hold of Rajneesh Singh (deceased) and banged him against the shutter of a shop. Out of fear, they ran away from the spot. He managed to reach Paprola. His other colleagues except Rajneesh also reached there. They went to the Railway Station and sat in a boggie. On inquiry, they came to know that train would leave at 5 or 5.30 a.m. Then they came to the road side and returned to the University by a bus. Further according to him, he joined the identification parade, which was conducted by a Magistrate and out of them he identified Susheel Kumar, respondent.
13. In his cross-examination, he has stated that during that time, all the aforesaid students were living in the University hostel and they did not take any permission to see the movie and returning late night. He has denied that they had been misbehaving with the lady passengers and the passengers in the bus had objected to their boarding in the bus, which resulted in scuffle between them and some passengers at the University gate. He has admitted having been given beatings by the passengers to them at Baijnath and they started running in different directions. According to him, he had travelled once with Susheel Kumar, driver about four months prior to the occurrence from Una to Palampur, said Susheel Kumar was holding Rajneesh from the shirt collar and banging him against the shutter.
14. It is pertinent to note from his statement that he has deposed regarding catching hold of Rajneesh Singh only by Susheel Kumar respondent and banging him against the shutter of the shop, whereas PW-3 Ravi Dogra stated that Rajneesh was being caught by Harvinder Singh and Susheel Kumar respondents and they were banging him against the shutter. When he was confronted with his complaint Ext. PC in his cross-examination, the names of the above respondents did not find any mention except that 2 or 3 persons had caught hold of Rajnish who banged him against the shutter. If both the witnesses knew them it is surprising why their names did not find mention in the complaint aforesaid.
Both the above named witnesses have stated that they were given beatings by a mob which had gathered there and the passengers of the bus also participated in their thrashings.
15. On the perusal of the statement of Dr. CM. Rao (PW-28) coupled with the post-mortem report Ex.PT, we have found that there was no head injury on the dead-body therefore, the statements of the above named witnesses qua the fact that the respondents had banged the deceased against the shutter appears to be totally incorrect.
Therefore, the circumstance that the deceased was caught hold by the respondents and banged against the shutter as aforesaid stands falsified.
16. The above incident took place on 14.11.1991 and the dead-body of Rajnish was found in a septic tank nearby on 19.11.1991 PW3 Ravi Dogra, has stated that after they handed over the complaint Ex.PC to SHO Baijnath, he took them alongwith other students to the place of occurrence, i.e. bus stand Baijnath and the entire area of the bus stand and adjoining area was thoroughly searched. There was no sign of any struggle nor could they notice the dead-body. The Daily-diary report (Ex.DE) dated 18.11.1991, recorded at the instance of the then Inspector/SHO Hardev Bisht (PW-29) has further compounded the suspicion because it records that he (PW-29) got the telephonic message from SDM Kangra that some students had informed him that the student who was alleged to have been missing was seen in Kangra hospital taking the first-aid and had wrongly disclosed his name as Arvind. He was also seen in the musical night during the previous night with some boys, therefore, a request was made to the University authority to supply his photo in order to ascertain this fact from the doctor concerned. According to Hardev Bisht, aforesaid, he got the aforesaid fact verified through a constable of his police station, he had revealed that it was false information given to the SDM, by some anti-social element. But it is quite surprising that the said Inspector neither verified this fact himself nor deputed any responsible Investigating Officer of his police station to ascertain the authenticity of the said report.
17. Further PW-28 Gurbux Singh has stated that two boys had pointed out shop of the carpenter at the bus stand who had seen the alleged occurrence, but on inquiry the said carpenter had denied having seen any incident.
18. Atul Puri (PW-19) stated that a written complaint was also made by them to the Students Welfare Officer when they had returned to the hostel. That complaint was not produced in the Court to know as to what was their earliest version.
19. The other witnesses, namely Gian Chand, Sundershan Singh, Parkash Singh, Sheela Devi and Shubh Kumar were the passengers, of the bus in question. Except Shubh Kumar (PW 17) all others have resiled from their earliest version. Even PW-17 aforesaid has not stated anything favourable to the prosecution. PW-9 Gian Chand, who was the head of the contingent travelling in the bus, going to Kullu to participate in the tournament, has stated that the boys who had boarded the bus were behaving in a manner giving apprehension that they might misbehave with the lady passengers, who were about twelve in number. According to Sudershan Singh (PW-10) one boy did not alight at the University gate and he was never stopped from getting down from the bus. PW-12 Sheela Devi has stated that passengers had objected to the forcible entry of the boys into the bus and instead of getting down at the University gate they started quarreling with the passengers and they appear to be under the influence of some intoxicant. Shubh Kumar (PW-17) has categorically stated that the passengers traveling in the bus had started objecting and saying that these boys always create problems and inconvenience to the passengers and they should be taken to police station Baijnath.
20. According to PW-18 Shri S.K. Pathania, Students Welfare Officer of the University the attendance of the students was marked by the warden at 9 p.m. on 13.11.1991 and report was submitted to him. He has also stated that under the rules a student is required to take the permission, in case any of them leaves the campus for the night. It is worth noting that the attendance which was alleged to have been submitted by the warden to him with respect to 13.11.1991 was not produced either by him to the police or otherwise taken by the police into their possession in order to know whether the deceased was present in the hostel on 13.11.1991. This fact assumes importance in view of the defense taken by the respondents that the deceased was not present in the hostel even on 13.11.1991.
21. As far as the identification of Susheel Kumar respondent before the Magistrate by Balram (PW-2) is concerned, it is worth rejecting for the reasons that Susheel Kumar was arrested on 20.11.1991. He remained in the police custody thereafter. He was produced before the Judicial Magistrate, Palampur where the University is situated. There is no evidence on record to show that right from the day he was arrested, he was ordered to muffle his face, so that a proper identification parade could be conducted before the Magistrate. No such directions were ever given to Susheel Kumar accused by the police. Even otherwise the identification parade does not prove the case in view of the above stated facts; therefore, identification of Susheel Kumar respondent in the circumstances aforesaid is of no use.
22. On culling the aforesaid evidence on record, we are of the opinion that the porsecution witnesses could not prove the alleged incident beyond a reasonable doubt against the respondents nor there is any evidence connecting the respondents with the alleged crime. The testimonies of the prosecution witnesses are full of contradictions, material improvements and embellishments therefore, it cannot be relied upon.
23. For the reasons above mentioned, we find that the reasons for acquittal recorded by the learned trial Court are borne out from the evidence on record, therefore, calls for no interference. Accordingly, the appeal is dismissed.
24. The respondents are discharged from their bail bonds entered upon by them at any time during the proceedings of this case.