The Hon'ble Mr. Justice Surjit Singh, Judge. The Hon'ble Mr. Justice ...

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.Criminal Appeal No.27 of 1994.Judgment reserved on 18.3.2008.Date of decision: 27.3.08.State of H.P.….Appellant.VersusHarvinder Singh & Others.… Respondents.CoramThe Hon’ble Mr. Justice Surjit Singh, Judge.The Hon’ble Mr. Justice Surinder Singh, Judge.Whether approved for reporting? Yes.For the appellant : Mr. P.K. Sharma, Addl. Advocate General.For the respondents :Mr. K.D.Sood, & Mr.B.N. Gupta, Advocates, forrespondents No.1 and 3.Mr. Anuj Nag, Advocate, for respondent No.2.Surinder Singh, Judge.The respondents were put on trial and acquitted of theoffences under Sections 323, 365 and 302 read with Section 34 of theIndian Penal Code for allegedly abducting Atul Puri, causing simpleinjuries to Ravi Kumar and Yog Raj Gupta and causing the death ofRajneesh Singh.In brief, the prosecution story, as emerges from the prosecutionwitnesses can be stated thus: Harvinder Singh was the driver and SurajSingh respondent was conductor of bus no. HIE-1387 of H.R.T.C. Kulludepot, running between Jammu and Manali. S/Shri Ravi Dogra (PW3),Yog Raj, Vikas Kalia, Jagat Ram, Balram Kumar (PW2), Nand Chand, AtulPuri and Rajneesh (deceased) were B.Sc. students of the AgricultureUniversity Palampur and they used to stay in the campus hostel. OnWhether reporters of the local papers may be allowed to see the judgment? Yes.

- 2 -14.11.1991, after watching the movie, in the evening, they went to a shopwhere the cricket match between India and Australia was being telecast. Itended around 11 p.m. All the above named students waited for the bus, totake a lift up to their campus. The aforesaid bus reached there at about11.30 p.m. They boarded the bus. The conductor demanded the fare ofRs.5/- per head up to Baijnath, being a long route bus, as against 50 paisaper passenger up to the campus gate. The aforesaid students objected tothe alleged unfair demand However, the matter was settled at the rate ofRe.1/- per person. The fare amount was paid by Vikas Kalia. When thebus reached near the campus gate, it was stopped. The said studentsalighted from the bus one by one but Atul Puri was not allowed to getdown from the bus by Suraj Singh, conductor and the bus started movingahead. Seeing this, all the seven students who had alighted near thecampus-gate clung to the back portion of the moving bus. HarvinderSingh respondent took the bus to Baijnath bus-stand. Both the crews ofthe bus and the bus passengers started beating all the students. RaviSingh (PW3) and Yog Raj were allegedly given beatings with the iron rodsby Harvinder Singh and Suraj Singh. All of them ran hay -way to savetheir lives. Rajneesh (deceased) was allegedly caught hold of by 2-3persons; they banged him against the shutter of a shop. After about onehour, all the students except Rajneesh Singh returned to the bus standand thereafter went to Paprola Railway station and kept sitting in therailway boggie. When they came to know that the train would leave at 5.30a.m., then they returned to the University campus in a bus, but they didnot 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 thePolice Station, Baijnath. On 15.11.1991. S/Shri Ravi Singh (PW3) andJog Raj lodged a missing report (Ext PC) of Rajneesh, in police stationBaijnath. But the Baijnath police found it a case falling under thejurisdiction of Palampur police-station, therefore, the said complaint was

Polityka antykorupcyjna5.6. Własne przedsięwzięcia, inicjatywy w zakresie przeciwdziałaniakorupcji wprowadzone w urzędach wojewódzkich 1715.7. Własne przedsięwzięcia, inicjatywy w zakresie przeciwdziałaniakorupcji wprowadzone w urzędach i instytucjach centralnych 1745.8. Własne przedsięwzięcia, inicjatywy w zakresie przeciwdziałaniakorupcji zlecone jednostkom podległym 1835.9. Własne inicjatywy podejmowane przez jednostki podległe w zakresieprzeciwdziałania korupcji 1885.10. Podsumowanie 1936. Korupcja, nieufność i moralna panika – kilka uwag o problemach z ustaleniemrozmiarów, zapobieganiem i karaniem korupcji – dr hab. KlausBachmann 201Aneksy 211

- 5 -acquittal of the respondents passed by the learned trial court deserves tobe converted into conviction.Contra, the learned counsel for the respondents supported theimpugned judgment of acquittal.We have given thoughtful consideration to the rival contention ofthe parties and have carefully gone through the record.Admittedly, few students boarded the bus in question to go up tothe campus gate, at about 11.30 p.m. The defense of the respondents isthat Rajneesh Singh (deceased) was not one of those students who hadboarded their bus. Now let us examine as to what the prosecutionwitnesses have deposed in the court and whether the findings of acquittalrecorded by the learned trial court are born out from the evidence onrecord.According to PW-2 Balram Kumar, after seeing the movie on14.11.1991, at about 10.30 p.m., they went to one of the shops in thebazaar where the cricket match between India and South Africa was goingon the Television. At that time, Yog Raj Singh, Vikas Kalia, RajneeshSingh (deceased), Ravi Dogra,(PW3) Jagat Ram, Naval Chander and AtulPuri were with him. When the match was over at about 11.15 p.m, theywaited for the bus for going to the University. One HRTC bus which wasrunning between Jammu and Manali arrived there around 11.30 p.m.,which was being driven by Harvinder Singh, respondent. As they wantedto board the bus, they were not allowed to get in, on the ground that it wasa long route bus and would not stop at the Agriculture University, but theymade special request to the driver to take them up to the Universitycampus and the driver agreed. All of them boarded the bus. RespondentSuraj Singh who was the conductor demanded the fare at the rate ofRs.5/- each up to Baijnath, whereas, it was only 50 paisa per passengerup to the University gate, but after pleading with him, he charged Re.1/-per passenger. Vikas Kalia paid Rs.8/- and the conductor issued the

- 6 -tickets. The bus was stopped at the University gate. All except Atul Purigot down from the bus. The bus started moving fast, seeing this all ofthem hanged up themselves behind the bus and the driver started takingthe 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 towhy they were not allowed to get down at the University gate. On this, thepassengers started shouting. Some persons who had gathered there,started beating them. He could not identify the assailants. One of thedrivers at the bus-stand, (whom he had identified as Susheel Kumar, inthe court) caught hold of Rajneesh Singh (deceased) and banged himagainst the shutter of a shop. Out of fear, they ran away from the spot. Hemanaged to reach Paprola.His other colleagues except Rajneesh alsoreached there. They went to the Railway Station and sat in a boggie. Oninquiry, they came to know that train would leave at 5 or 5.30 a.m. Thenthey came to the road- side and returned to the University by a bus.Further according to him, he joined the identification parade, which wasconducted by a Magistrate and out of them he identified Susheel Kumar,respondent.In his cross-examination, he has stated that during that time, all theaforesaid students were living in the University hostel and they did nottake any permission to see the movie and returning late night. He hasdenied that they had been misbehaving with the lady passengers and thepassengers in the bus had objected to their boarding in the bus, whichresulted in scuffle between them and some passengers at the Universitygate. He has admitted having been given beatings by the passengers tothem at Baijnath and they started running in different directions.According to him, he had travelled once with Susheel Kumar, driverabout four months prior to the occurrence from Una to Palampur,

- 7 -said Susheel Kumar was holding Rajneesh from the shirt collar andbanging him against the shutter.It is pertinent to note from his statement that he has deposedregarding catching hold of Rajneesh Singh only by Susheel Kumarrespondent and banging him against the shutter of the shop, whereas PW-3 Ravi Dogra stated that Rajneesh was being caught by HarvinderSingh and Susheel Kumar respondents and they were banging himagainst the shutter. When he was confronted with his complaint Ext PCin his cross-examination, the names of the above respondents did not findany mention except that 2 or 3 persons had caught hold of Rajnish whobanged him against the shutter. If both the witnesses knew them it issurprising why their names did not find mention in the complaint aforesaid.Both the above named witnesses have stated that they were givenbeatings by a mob which had gathered there and the passengers of thebus also participated in their thrashings.On the perusal of the statement of Dr. C.M. Rao (PW-28) coupledwith the postmortem report Ex.PT, we have found that there was no headinjury on the dead body, therefore, the statements of the above namedwitnesses qua the fact that the respondents had banged the deceasedagainst the shutter appears to be totally incorrect.Therefore, the circumstance that the deceased was caught hold bythe respondents and banged against the shutter as aforesaid standsfalsified.The above incident took place on 14.11.91 and the dead body ofRajnish was found in a septic tank nearby on 19.11.91. PW3 Ravi Dogra,has stated that after they handed over the complaint Ex.PC to SHOBaijnath, he took them alongwith other students to the place ofoccurrence, i.e. bus stand Baijnath and the entire area of the bus standand adjoining area was thoroughly searched. There was no sign of anystruggle nor could they notice the dead body. The Daily-diary report

- 8 -(Ex.DE) dated 18.11.1991, recorded at the instance of the thenInspector/SHO Hardev Bisht (PW29) has further compounded thesuspicion because it records that he (PW29) got the telephonicmassage from SDM Kangra that some students had informed himthat the student who was alleged to have been missing was seen inKangra hospital taking the first- aid and had wrongly disclosed hisname as Arvind. He was also seen in the musical night during theprevious night with some boys, therefore, a request was made to theUniversity authority to supply his photo in order to ascertain this factfrom the doctor concerned. According to Hardev Bisht, aforesaid, he gotthe aforesaid fact verified through a constable of his police station; he hadrevealed that it was false information given to the SDM, by some antisocialelement. But it is quite surprising that the said Inspector neitherverified this fact himself nor deputed any responsible Investigating Officerof his police station to ascertain the authenticity of the said report.Further PW 28 Gurbux Singh has stated that two boys had pointedout shop of the carpenter at the bus stand who had seen the allegedoccurrence, but on inquiry the said carpenter had denied having seen anyincident.Atul Puri (PW19) stated that a written complaint was also madeby them to the Students Welfare Officer when they had returned tothe hostel. That complaint was not produced in the court to know as towhat was their earliest version.The other witnesses, namely Gian Chand, Sundershan Singh,Parkash Singh, Sheela Devi and Shubh Kumar were the passengers, ofthe bus in question. Except Shubh Kumar (PW17) all others have resiledfrom their earliest version. Even PW 17 aforesaid has not stated anythingfavourable to the prosecution. PW-9 Gian Chand, who was the head of thecontingent trevelling in the bus, going to Kullu to participate in thetournament, has stated that the boys who had boarded the bus were

- 9 -behaving in a manner giving apprehension that they might misbehave withthe lady passengers, who were about twelve in number. According toSudershan Singh (PW10) one boy did not alight at the University gate andhe was never stopped from getting down from the bus. PW12 SheelaDevi has stated that passengers had objected to the forcible entry of theboys into the bus and instead of getting down at the University gate theystarted quarreling with the passengers and they appear to be under theinfluence of some intoxicant. Shubh Kumar(PW17) has categoricallystated that the passengers traveling in the bus had started objecting andsaying that these boys always create problems and inconvenience to thepassengers and they should be taken to police station Baijnath.According to PW-18 Shri S.K. Pathania, Students Welfare Officer ofthe University the attendance of the students was marked by the wardenat 9 P.M. on 13.11.91 and report was submitted to him. He has also statedthat under the rules a student is required to take the permission, in caseany of them leaves the campus for the night. It is worth noting that theattendance which was alleged to have been submitted by the warden tohim with respect to 13.11.191 was not produced either by him to the policeor otherwise taken by the police into their possession in order to knowwhether the deceased was present in the hostel on 13.11.1991. This factassumes importance in view of the defense taken by the respondents thatthe deceased was not present in the hostel even on 13.11.91.As far as the identification of Susheel Kumar respondent before theMagistrate by Balram (PW2) is concerned, it is worth rejecting for thereasons that Susheel Kumar was arrested on 20.11.1991. He remained inthe police custody thereafter. He was produced before the JudicialMagistrate, Palampur where the University is situated. There is noevidence on record to show that right from the day he was arrested, hewas ordered to muffle his face, so that a proper identification parade couldbe conducted before the Magistrate. No such directions were ever given to

- 10 -Susheel Kumar accused by the police. Even otherwise the identificationparade does not prove the case in view of the above stated facts;therefore, identification of Susheel Kumar respondent in thecircumstances aforesaid is of no use.On culling the aforesaid evidence on record, we are of the opinionthat the prosecution witnesses could not prove the alleged incidentbeyond a reasonable doubt against the respondents nor there is anyevidence connecting the respondents with the alleged crime. Thetestimonies of the prosecution witnesses are full of contradictions, materialimprovements and embellishments; therefore, it cannot be relied upon.For the reasons above mentioned, we find that the reasons foracquittal recorded by the learned trial court are borne out from theevidence on record, therefore, calls for no interference. Accordingly, theappeal is dismissed.The respondents are discharged from their bail bonds entered uponby them at any time during the proceedings of this case.(Surjit Singh)JudgeMarch 27 th , 2008.*Pds*(Surinder Singh)Judge