GA/441/2007
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      22.05.2023                        GA No. 441 of 2007
                                        Hon'ble Sharad Kumar Sharma, J.

Mr. T.C. Aggarwal, Deputy Advocate General, for the State.

Mr. Nagesh Aggarwal, Advocate, along with Mr. Nishant Krishana Adhikari, Advocate, for the respondents.

The instant Government Appeal under sub-Section (3) of Section 378 of CrPC has been preferred being aggrieved as against the judgment of acquittal dated 19.01.2004, as it was rendered by the Court of Additional Sessions Judge, 3rd, FTC in Case Crime No. 102 of 1998, resulting in initiation of the proceedings of ST No. 372 of 1999, whereby the respondents herein had been tried for the offences under Section 304/34 and 320/34 of IPC and Section 145 of the Railway Act. It is the said judgment of acquittal, which has been put to challenge.

Brief facts, which engage consideration in the present case are, that the prosecution case was that the incident, which had chanced on 18.09.1998, it was alleged that the complainant was travelling along with his younger brother in a train, whereby when the present accused persons were said to have boarded into the said train and had forcefully asked the complainant to leave the seat so that it may be occupied by them.

The accused persons are said to have even been the passengers, who were travelling in the train and its because of the altercations, which were taken place, it is contended by the complainant, that before they could reached their destination i.e. Saharanpur, at station Najibabad, certain students who had forcibly entered into the train, which included the respondents herein, they assaulted the complainant and his brother by knife and other weapons, due to which it was alleged that they have suffered injuries.

When the altercations which took place and the accused persons were attempted to be apprehended by the complainant and other co passengers, it is the prosecution case that the accused persons have ran out of the train; hence at that time they could not be identified at the time when the offence was committed, except for the fact, that at the stage when the accused persons were leaving the train, certain copies, which were being carried by them, had fell down from the train, from there, their identification was traced to be the actual accused person involved in the commission of the offence.

Upon framing of the charge, the case was committed for trial on 16.08.1999. The prosecution, in support of their case has examined the witnesses i.e. Mr. Rampal PW1, Mr. Prem Chandra PW2 and constable Ombir Singh PW3 bearing constable No.

Sant Ram Singh.

The accused persons have recorded their statements under Section 313 of CrPC and the learned trial Court, after considering the statements of the witnesses which were brought on record along with the documentary evidences, and after appreciating the same, the Court has observed, that the statement which had been recorded by the constables with regard to the commission of offence could not be established beyond doubt, apart from the fact that the indulgment of the accused persons could not be specifically made out from the statements recorded by the witnesses of the prosecution or on appreciation of evidence on record, which couldn't prove the prosecution case.

The learned trial Court has observed that according to the statement of the prosecution and the examination of witnesses as conducted on 19.09.1998, the allegations that the applicants who were the students of Acharya R.N. Kela Inter College, Najibabad, the said factum was not established beyond doubt as against the present applicants and the allegations levelled therein with regard to the assault being made by them to the complainants due to which they were said to have been suffered from the injury, was not made out.

The learned trial Court, while arriving at a conclusion has observed, that in such type of incident, which chances in a running train, it has had to be taken up with serious note, but the prosecution has failed to establish that any such offence was at all actually committed in which the applicants were said to be involved and in the absence of there being any evidence being led to the contrary in support of the prosecution case, the learned trial Court has acquitted the present applicants from their alleged involvement in commission of offence and while arriving at a conclusion, the Court has rightly observed that it cannot be even concluded that the injury which was said to have been caused on the complainant, with a stab injury, which has been suffered by the complainant cannot be connected with the involvement of the present accused persons in the commission of the offence.

Hence, the Court has observed that none of the offences either under Section 304 to be read with Section 34 and Section 323 to be read with Section 34 of IPC and Section 145 of the Railway Act, is made out beyond doubt and hence the respondents had been acquitted by the Court of Sessions Judge by the impugned judgment dated 19.01.2004.

After having heard the learned counsel for the parties and on perusal of the records as placed before this Court, in fact, if the records are perused and the testimony of the prosecution witnesses which have been referred to in the impugned order are taken into consideration, they have utterly failed to establish beyond doubt with regard to the alleged incident, which was said to have chanced on 18.09.1998.

Even on appreciation of the evidence and on the judicious scrutiny of the cross examination, the learned trial Court has observed, that the prosecution has not led any credible evidence in support of their stand taken before the learned trial Court and particularly in the cross examination of the witness as recorded under Section 161, they have rather denied the incident and the manner in which it was alleged to have been committed.

Owing to the aforesaid reasons, once the prosecution has not been able to establish the commission of offence beyond doubt, the judgment of acquittal rendered by the learned trial Court vide its judgment dated 19.01.2004, cannot be said to have suffered from any error of law, both factual or procedural and as such, the Government Appeal fails and the judgment of acquittal as rendered on 19.01.2004 is hereby upheld.

(Sharad Kumar Sharma, J.) 22.05.2023 Mahinder/