Prafulla C. Pant, J. - (1.) THIS appeal, preferred under section 378 of the Code of Criminal Procedure, 1973 (hereinafter re ferred as Cr.P.C.) is directed against the judgment and order dated 3.2.1994, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 126 of 1991, whereby accused/respondent Mohd. Hashim Iqbal S/o Akhtar has been acquitted of the charge of offence punishable under section 302 of Indian Penal Code, 1860 (for brevity hereinafter referred as I.P.C.), and one punishable under1 section 25/4 of the Arms Act, 1959.
(2.) HEARD learned Counsel for the parties and perused the Lower Court rec ord. Prosecution story, in brief, is that on 3.8.1991, a bus bearing registration No. UP07/3512 proceeded from Vikasnagar at about 7:00 A.M. for Dehradun. P.W. 1 Narendra Pal Sharma (complainant) was con ductor in said bus and P.W. 2 Khairati Lal was driving the bus. P.W. 3 Km. Mukta Rawat was one of the four passengers, who boarded the bus at Vikasnagar. One of the passengers out of the four, got down near Lehman Hospital, as such, only three pas sengers remained in the bus. The complainant Narendra Pal Sharma (P.W. 1) after demanding tickets from the three, came back to his seat. Soon thereafter, at about 7:20 A.M., some altercation took place between the two male passengers, and one of them accused/respondent Mohd. Hashim Iqbal) inflicted knife injury to another (Pal deceased). The bus was immediately stopped and the person armed with knife was apprehended by they Conductor with the help of the driver. He (apprehended person) disclosed his name as Mohd. Hashim Iqbal, son of Akhtar, resident of Village Majri, Police Station Sahaspur. The driver took back the bus to Lehman Hospital to provide medical treatment to the injured lying in the pool of blood inside the bus. However, the doctors in the hospital declared the injured, brought dead. On this, the driver and the conductor took the bus to nearest policl- out post Herbertpur, Police Station Vikasnagar, and handed over the accused Mohd. Hashim Iqbal and the knife recovered from his possession. The conductor (P.W. 1 Nar endra Pal Sharma) lodged the first infor mation report (Ext. A -1) at about 8:30 A.M., on the very day i.e. 3.8.1991, on the basis of which the police registered at the out post as crime No. 18 of 1991 (which was later re-numbered with Police Station Vikasnagar as 203 of 1991) relating to of fence punishable under section 302 of I.P.C. against the accused Mohd. Hashim Iqbal. Relating to the knife recovered from the accused, a separate report (Ext. A -2) was prepared and separate crime No. 204 of 1991, was registered against the accused Mohd. Hashim Iqbal, relating to offence punishable under section 25/4 of the Arms Act, 1959. The investigation was taken up by Sub-Inspector Gyan Chand Yadav (P.W. 9). He after interrogating the complainant and arresting the accused, proceeded to Lehman Hospital and took the dead body of Pal (deceased) in his possession, and prepared the inquest report (Ext. A -20) at 9:15 A.M. He also got prepared police form No. 13-(Ext: A -21), sketch of the dead body (Ext. A-22), police form No. 33 (Ext. A-23) and letter to the Chief Medical Officer, re questing for post- mortem examination of the dead body (Ext. A -24). P.W. 6 Consta ble Vinod Kumar took the dead body in sealed condition for post-mortem exami nation. The Medical Officer Dr. Rakesh Shamshery of Doon Hospital conducted the post-mortem examination on the dead body of Pal (deceased) and prepared autopsy report (Ext. A -33) (formal proof dispensed with on behalf of the accused/respondent). The Medical Officer recorded-two incised wounds in the abdomen and back of the deceased and opined in the autopsy report that death of the deceased had occurred due to shock and haemor rhage on account of ante mortem injuries. During investigation, the bloodstained pieces of seat and the floor of the bus were taken by the Investigating Officer and the same were sent through P.W. 8 Constable Swaraj Singh for chemical examination. After completing the investigation, the In vestigating Officer submitted charge-sheet (Ext. A -27) against the accused Mohd. Hashim Iqbal for his trial in respect of of fence punishable under section 302 of I.P.C., Police Station Vikasnagar, District Dehradun. A separate charge- sheet (Ext. A -32) was filed for the trial of ac cused/respondent in respect of offence punishable under section 25/4 of the Arms Act, 1959. The Magistrate, on receipt of the charge-sheets, after giving necessary copies to the accused, as required under section 207 of Cr.P.C, committed both the cases, to the Court of Sessions, for trial. Learned Sessions Judge on 11.10.1991, after hearing the parties, framed charge of offence pun ishable under section 302 of I.P.C. and one punishable under section 25/4 of the Arms Act. The accused/respondent pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Narendra Pal Sharma (complainant); P.W. 2 Khairati Lal (driver of the bus); P.W. 3 Km. Mukta Rawat (a passenger in the bus); P.W. 4 Sumer Chand (brother of the deceased); P.W. 5 Head Constable Braham Pal Singh (who prepared the check report of the first information report); P.W. 6 Constable. Vinod Kumar (who took the dead body in sealed condition for post mortem examination); P.W. 7 Head Con stable Roop Chand (who made necessary entry in the general diary); P.W. 8 Consta ble Swaraj Singh (who took the blood stained articles it sealed condition for chemical examination, and P.W. 9 Station Officer Cyan Chand Yadav (who investi gated the crime). All the documentary and oral evidence was put to the accused, un der section 313 of Cr.P.C., in reply to which the accused alleged all the evidence to be false. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the Trial Court opined that the prosecution has not been successful in proving the charge against the ac cused/respondent Mohd. Hashim Iqbal beyond reasonable doubt, and accordingly, acquitted him of the charges framed against him. Hence, this appeal was filed by the State before the Allahabad High Court on 13.5.1994, where the leave was granted on 19.2.1999 and the appeal admit ted. The appeal is received by this Court under section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.
(3.) BEFORE further discussion, we think it just and proper to mention here the ante-mortem injuries found on the dead body of Pal (deceased), as mentioned in the autopsy report (Ext. A-33) prepared by Medical Officer Dr. Rakesh Shamshery (formal proof of the document was dis pensed with): (i) Incised wound 3 cm x 2 cm on the right side of abdomen about 2 cm away from umbilicus. Omentum and intestines protruding from the wound, (ii) Incised wound 5 cm x 1/2 cm on the right middle part of back. On internal examination, the Medical Officer found the peritoneum and stomach punctured. He also found that in the large intestine also there was punctured wound. In the opinion of the Medical Officer Dr. Rakesh Shamshery of Doon Hospital, as mentioned in the autopsy report (Ext. A-33) prepared on 4.8.1991, at 3:00 P.M., cause of death of the deceased was shock and haemorrhage due to ante-mortem injuries. The time between death and post-mortem examination is recorded by the Medical Officer in said report as 30-36 hours. The aforesaid medical report read with testi mony of P.W.I Narendra Pal Sharma, proves homicidal death of Pal (the de ceased). Before going to the discussion on oral evidence we also think it proper to mention about the report given by the Chemical Examiner on the blood stained articles sent to him. The report (Ext. A-5) discloses that the blood stained knife con tained human blood. Report Ext. A-6 submitted by the Chemical Examiner dis closes that in the blood stained shirt, blood stained piece of tin (of floor of bus) and blood stained seat cover, human blood was found. P.W. 9 Cyan Chand Yadav, Station Officer, who investigated the crime, has stated that there was bloodstains in the shirt of the accused, which was taken into possession and memorandum Ext. A-3 was prepared. He has also disclosed that in the bus where the murder was committed there was blood on the floor of the bus and on the seat of the bus, as such, tin piece of floor and the piece of seat were taken and memorandum Ext. A-4 was prepared. On reading the evidence of the Investigating Officer with the Chemical Examiner's re port, we find that it is established on the record that on the seat of the bus where the murder of Pal is said to have been commit ted by the accused Mohd. Hashim Iqbal, and the bloodstained knife with which the accused is said to have been armed, both contained human blood.;