JUDGMENT
R.A. Jahagirdar, J.
1. The two appellants, hereinafter referred to as accused Nos. 1 and 2, have been convicted by the learned Sessions Judge of Nasik in Sessions Case No. 79 of 1976 of the offence punishable under section 304 (Part II) read with section 34 of the Indian Penal Code. The facts leading to this prosecution are very few and may be stated straightway. On the day in question, that is on 8th of March, 1976, the first accused was in charge as a conductor of a bus belonging to the State Transport Corporation which was proceeding from Sinnar to Padli. One Rajaram Dagdu Avhad, who belongs to village Padli, had gone to Sinnar for obtaining a loan for digging a well in his land. He was returning by the bus on which accused No. 1 was the conductor. Accused No. 1 is the resident of village Dubere. Accused No. 2 who is also a conductor employed by the State Transport Corporation, was in the said bus, though not on duty.
2. At one stage it was noticed by accused No. 1 that there were two passengers more in the bus than the number of tickets sold. He, therefore, asked those persons who had not purchased the tickets to purchase the tickets from him. The prosecution evidence shows that even before this was bus starts they must purchase the tickets. Despite this, it was found that two persons were travelling without having purchased tickets. One of them was a lady who, however, purchased the ticket. On checking, accused No. 1 found that Rajaram Dagdu had not purchased ticket. Rajaram there after purchased. This could not have been possibly true because accused No. 1 had in fact found that there were two passengers more in the bus than the sale of the tickets had warranted. Thereafter, using some force Rajaram was taken out of the bus and left on the road. Before this was done, the prosecution alleges, accused No. 1 had slapped Rajaram a couple of times. It is the prosecution case that even after Rajaram was taken on the road he was mercilessly beaten mostly by fistcuffs by both accused Nos. 1 and 2. At couple of passengers say that they tried to intervene but without any success. Thereafter the bus went away leaving Rajaram stranded on the road.
3. The prosecution then alleges that Rajaram went walking to his village where his wife received him in an injured condition. For two days Rajaram was treated by local doctors and on 10th of March, 1976 at about 8 p.m., that is nearly 48 hours after the incident, Rajaram breathed his last. It is thereafter that cognizance was taken of this incident and investigation was set into motion. Statements of the persons who were later examined as prosecution witnesses were recorded.
4. Dr. Kale, examined as (P.W. 3), had performed the post-mortem examination on the body of Rajaram. He had found about 18 abrasion and bruises on the body of Rajaram. On an internal examination he noticed that the brain was slightly congested. So also were the bronchi and the lungs. The right chamber contained dark veinous blood. It was found that the liver and kidneys were congested. Dr. Kale gave the opinion that the cause of death was cardio-respiratory failure secondary bailateral pneumonia. We may straightway at this stage briefly refer to the cross-examination of Dr. Kalbe wherein he has failed to assert conclusively that external trauma was likely to results on or contribute to pneumonia. In particular he has failed to establish that the blows inflicted by fistcuffs could have caused the pneumonia which was the cause of death of Rajaram.
5. In support of the case of the prosecution, several witnesses who were travelling with Rajaram in the same bus were examined. Reference may be made to only three of them. They are Sukhdeo (P.W. 1), Keru (P.W. 2) and Mhatarba (P.W. 4). The evidence led by the prosecution commended itself to the learned Sessions Judge who by his judgment an order dated 1st of December, 1976 proceeded to convict both the accused of the offence punishable under section 304 (Part II) read with section 34 of the Indian Penal Code. While so doing, the learned Sessions Judge accepted that both the accused administered fistcuffs to the deceased Rajaram and they did this knowing that such injuries were likely to cause the death of Rajaram.
6. It is this order of conviction which has been, in our opinion rightly, challenged by both the accused. That is Criminal Appeal No. 1233 of 1976. The State has chosen to prefer an appeal being Criminal Appeal No. 1254 of 1976, challenging the order of acquittal passed by the learned Sessions Judge under section 302 read with section 34 of the Indian Penal Code. Both these appeals have been heard together and are being disposed of by this common judgment.
7. Mr. Dudhat, the learned Advocate appearing in support of the appellants-accused, has taken us through the relevant evidence on which the prosecution is based. There is no dispute that the prosecution case must stand or fall by the acceptability or otherwise of the testimonies of the three witnesses whose names we have mentioned above. They are Sukhdeo, Keru and Mhatarba. All of them have in their examination-in-chief broadly spoken in terms of the prosecution which have summarised earlier. But in the cross-examination it has been brought out that none of them could have possibly seen if the accused or either of them gave any fist blows when Rajaram was taken down from the bus on the road. For example, Sukhdeo has admitted as follows in his cross-examination :—
“It was dark at the time of incident. Out of the bus I did not see what happened below the bus due to darkness. I did not see the accused assaulting due to darkness.”
More comment need not be made on this witness.
8. Keru (P.W. 2), who has giving a somewhat detailed account of the incident, has again spoken interns of the prosecution case in the examination-in-chief. But in the cross-examination it has been successfully brought out that there are material omissions amounting to contradictions in his statement as compared to the statement which he had made to the police. Despite his protestations to the contrary, it has come in the evidence of the Investigating Officer that Keru had not stated before him that accused No. 2 gave two or three slaps to Rajaram before dragging him out of the bus and that Keru had not stated that accused No. 1 assaulted Rajaram after he was dragged down the bus. Despite the fact that the statement of this witnesses had been recorded nearly three or four days after the incident was over, keru has omitted to mention a fact which could have been the very foundation of the prosecution case. In these circumstances, it would be hazardous to accept the statement which he is making for the first time in the Court that accused Nos. 1 and 2 assaulted Rajaram on the road after the latter had been dragged down from the bus.
9. Mhatarba (P.W. 4) has also again spoken in terms of the prosecution case in the examination-in-chief. Thereafter in the cross-examination he has mentioned that it was darkness outside and he did not get down from the bus. Initially he had mentioned that he could see the beating that was taking place in the light of the bus, but in the cross-examination he had to admit that the light inside the bus was in front of him. Of course he repudiated the suggestion that he could not see anything outside the bus on account of darkness. That there was darkness outside the bus has been admitted by the other two witnesses. If, therefore, Mhataba insists that there was sufficient light which would have enabled him to see the assault. It would be difficult to accept his statement.
10. The prosecution also sought to rely upon the testimony of Shantabai the widow of Rajaram, who has mentioned that when Rajaram came to the house at night he had told her that he had been beaten by the bus conductors. However, since we find that the eye-witnesses themselves are unreliable and the preliminary evidence of the beating is unavailable, it would be hazardous for us to accept the testimony of Shantabai that Rajaram disclosed to her that the bus conductors had assaulted him. Apart from this, it has also been brought to our notice that two doctors who had examined Rajaram were not informed either by Shantabai or anyone else that Rajaram had suffered the injuries at the hands of the conductors of the bus.
11. If we notice the injuries also which were found by Dr. Kale (P.W. 3), it would be impossible to ascribe any of them to the alleged beating given by the accused. We have already mentioned earlier that Dr. Kale (P.W. 3) has not been able to establish that Rajaram had suffered the injuries due to fistcuffs or that he died of an injury which was caused by the beating alleged to have been given by the accused. There is nothing in the evidence, therefore, to show that accused. There is nothing in the evidence, therefore, to show that accused Nos. 1 and 2 or either of them administered beating severe or otherwise, to Rajaram when he was dragged down from the bus. In our opinion, therefore, the accused could not be convicted of any offence. The conviction of the accused under section 304 (Part II) read with section 34 of the Indian Penal Code will have, therefore, to be set aside and the State appeal will have to be dismissed.
12. In the result, we proceed to pass the following order :—
ORDER
Criminal Appeal No. 1233 of 1976 is allowed.
The order of conviction and sentence passed by the learned Sessions Judge of Nasik in Sessions Case No. 79 of 1976 is set aside and both the accused are acquitted of the offence with which they had been charged.
Criminal Appeal No. 1254 of 1976 is dismissed.
Bail bonds of both the accused are cancelled.
Order of conviction and sentence is sets aside.