JUDGMENT (Surinder Singh, J.) - S/Shri Khushal Bhardwaj, Naginder Sharma, Jagdish Thakur, Prem Negi, Dalip Kaisth, Tikender Singh and Vidya Sagar, hereafter to be referred as the accused, were tried in Session Trial No. 6-S/7 of 1997/95 and acquitted of the offence of murder of Kuldip Dadhwalia punishable under Section 302, 149 and 148 of the Indian Penal Code and except Dalip Kaisth who stood acquitted all others were convicted under Section 307, 149 and 148 of Indian Penal Code for the attempt to commit murder of Ajay Kaushal (PW1) and each of them were sentenced as under: Sr. No.Names accusedSection(s)Period of sentence. 1.Vidya Sagar(i) U/S 307 I.P.C.Rigorous imprisonment for four years and fine of Rs. 1,000/- 2.1. Khushal Bhardwaj. 2. Naginder Sharma. 3. Jagdish Thakur. 4. Prem Raj Negi. 5. Tikender Singh.U/Ss. 307/149 IPC (ii) U/S 148 IPCRigorous imprisonment for four years and fine of Rs. 1,000/-. Sentenced to pay fine of Rs. 500/- in default of payment of fine, to undergo simple imprisonmnet for one month on each count. 2.Feeling aggrieved and dissatisfied by their conviction, accused-appellants in Criminal Appeal No. 125 of 1997, have assailed their conviction and sentence, passed by learned trial Court, whereas, the State in Criminal Appeal No. 21 of 1998 has challenged the acquittal of the appellants as well as that of Dalip Kaisth on the ground that the learned trial Court did not appreciate the evidence on record in its right perspective, which has caused the miscarriage of justice. 3.In brief, the prosecution case has been that in the year 1995, PW1 Ajay Kaushal was the student of M.A. First Semester of Political Science, PW2 Vijay Agnihotri, PW12 Sanjay Sharma, PW13 Vikaram Sharma PW8 Shashi Dutt, were students of Law and PW19 Sanjay Kapoor was a student of fourth Semester of Public Administration, in the Himachal Pradesh University. Admittedly they were the activists of “Akhil Bhartiya Vidyarthi Parishad” (ABVP). The accused persons were also studying in the same University in different Departments and they were the activists and office holders of “Students Federation of India” (SFI). 4.On 20.5.1995 in the morning at 10.00 a.m., the complainant party noticed that in the rain shelter of the University, the words “ABVP Welcomes” were written, which were rubbed out and replaced by the words “S.F.I. Welcomes”. 4.On 20.5.1995 in the morning at 10.00 a.m., the complainant party noticed that in the rain shelter of the University, the words “ABVP Welcomes” were written, which were rubbed out and replaced by the words “S.F.I. Welcomes”. 5.PW1 Ajay Kaushal and PW2 Vijay Agnihotri brought into the notice of accused persons Kushal Bhardwaj, Jagdish Thakur Vice President of S.F.I. and Tikender Singh. Accused Tikender Singh proclaimed that these words were written by those who have might and strength. There were about fifteen ABVP students present in the University Campus as most of the students, who were ABVP activist, had gone for canvassing in the election campaign, to Sulah Vidhan Sabha Constituency. 6.At about 11.30 a.m., PW1 Ajay Kaushal, PW2 Vijay Agnihotri, PW12 Sanjay Sharma were sitting in the stairs of the library of the University campus. It is alleged that the accused persons came armed with sword and iron rods. On seeing them, they ran towards the library hall. Accused persons followed them. They caught hold of Ajay Kaushal (PW1) and belaboured him in the Library Hall, as a result of which he sustained sharp-edged injuries and fell down. Thereafter, the accused persons escaped from the scene of occurrence. 7.Vijay Agnihotri and Sanjay Sharma, aforesaid, picked up Ajay Kaushal and took him to the dispensary located in the university campus. Thereafter, Ajay Kaushal was taken to Ripon Hospital in the ambulance where he was medically examined by PW11 Dr. Ravinder Mokta at 1.30 p.m. Thereafter he was referred to I.G.M.C. for treatment. The police was informed about the aforesaid incident. On receiving the information PW16 Head Constable Dula Ram of Police Station (West) Boileauganj, Shimla visited I.G.M.C. Hospital and recorded the statement (Ex. PA) of PW1 Ajay Kaushal under Section 154 of the Code of Criminal on the basis of which F.I.R. (Ext. PAA) was registered. 8.At about 12.30 P.M. on the same day i.e. on 20.5.1995 the accused persons in furtherance of their common object allegedly attacked Kuldip Dhadwalia with swords and iron rods. He sustained injuries, to escape he ran towards University Cafeteria, the accused persons chased him with a common object to kill him and threw him down the hill side. He fell on Chariton Road below the Cafeteria from a height of about 50 feet as a result of which he sustained head injuries and became unconscious. He sustained injuries, to escape he ran towards University Cafeteria, the accused persons chased him with a common object to kill him and threw him down the hill side. He fell on Chariton Road below the Cafeteria from a height of about 50 feet as a result of which he sustained head injuries and became unconscious. Shri Dhadwalia was immediately rushed to the Indira Gandhi Medical College Hospital for medical treatment where he was attended by PW4 Dr. Surjeet Raina. The condition of Shri Dhadwalia was critical, as such, he was referred to PGI Chandigarh. He was hospitalized in PGI Chandigarh on 21.5.1995, he did not regain his consciousness till his death on 25.6.1995 at 7.40 p.m. 9The autopsy of the dead-body of Kuldip Bhadwalia was performed by Dr. Munish Goel (PW7) at Chandigarh. In the opinion of the Doctor, Shri Dhadwalia had died due to head injury and multiple ante mortem injuries and septicemia thereof, which was sufficient to cause the death in the ordinary course of nature. All the accused persons, except accused Vidya Sagar, were arrested on 20.5.1995 from the University Guest House, whereas Vidya Sagar was arrested on 5.6.1995. 10.Pursuant to the statement, made under Section 27 of the Evidence Act, accused Vidya Sagar got effected the recovery of Dagger Exhibit-P3 vide recovery memo Exhibit-PX. 11.The Investigating Officer (PW20) took into possession the blood stained shirt Exhibit P1 and vest Exhibit P2, of Ajay Kaushal vide memo Exhibit-PB. 12.It was also alleged that the accused persons had broken the window panes of University library, its splinters Ext. P4 were also taken into possession from the library Hall vide memo Exhibit-PB. 13.After completing the investigation, the Police had filed the challan against the accused persons under the aforesaid sections and also under Section 3 of Prevention of Damage to Public Property Act. 14.Accused persons were accordingly charge-sheeted. They pleaded not guilty and claimed trial. 15.To prove its case, the prosecution examined its witnesses. Accused persons when examined, under Section 313 of the Code of Criminal Procedure, took up the defense that they were the office bearers of S.F.I. and were falsely implicated in this case by Ajay Kaushal and his accomplices, with a view to tarnish their brilliant career. 16.Accused persons were called to enter into their defense. Accused persons when examined, under Section 313 of the Code of Criminal Procedure, took up the defense that they were the office bearers of S.F.I. and were falsely implicated in this case by Ajay Kaushal and his accomplices, with a view to tarnish their brilliant career. 16.Accused persons were called to enter into their defense. They examined DW1 Ashwani Sharma, Senior Correspondent of the Indian Express, who had covered the incident aforesaid and sent the news item for its publication after contacting Director General of Police in the matter. At that time, he was given to understand that the activists of ABVP and S.F.I. had clashed at the university campus and Shri Kuldip Dhadwalia had jumped from the building in panic. The accused persons have placed and proved the copy of the news item Exhibit-DD published in Indian Express daily dated 22-5-1995. 17.After the complete trial, learned Additional Sessions Judge disbelieved PW18 Shashi Dutt and PW19 Sanjay Sharma who were examined to prove the offence of murder of Kuldip Dhadwalia and did not find any evidence worth the name against Dalip Kaisth accused therefore acquitted the accused persons for the offence of murder and causing damage to the public property, whereas, all the accused persons except Dalip Kaisth were convicted and sentenced for attempt commit murder of Ajay Kaushal as aforesaid. 18.The convicts aforesaid, have assailed their conviction and sentence in their Cr. Appeal No. 125 of 1997 on the ground that the evidence of the prosecution is full of contradictions and replete, which does not inspire any confidence, whereas the State in its Cr. Appeal No. 21 of 1998 has assailed the acquittal of all the accused for the offence of murder and contended that the lapses of the Investigating Officer could not be a ground for the acquittal of all the accused. 19. Shri T.R. Chandel, learned Counsel for the accused persons has vehemently argued that PW1 Ajay Kaushal, the complainant, has materially contradicted himself from the F.I.R. and the alleged eye witnesses have given different version of the alleged attack and there are sharp contradictions in their statements which were ignored by the learned trial Court. Therefore, their conviction for attempt to commit murder of Ajay Kaushal was wrong and illegal. Therefore, their conviction for attempt to commit murder of Ajay Kaushal was wrong and illegal. He also argued that the said witnesses have made considerable improvements in their statements in the Court from that of the statements recorded under Section 161 of the Code of Criminal Procedure, further the medical evidence renders their testimonies highly doubtful. The learned Counsel has referred the statements of PWs Sanjay Sharma and Dr. Sujeet Raina to prove that the dagger (Ex.PW3) alleged to have been recovered at the instance of accused Vidya Sagar had no connection with the alleged crime as they have ruled its use in inflicting any of the injuries to the victim. It was vehemently argued that the statement of Shashi Dutt (PW18) and Sanjay Kapoor (PW19) are full of doubts so far as the alleged murderous attack by the accused persons of Kuldip Dhadwalia is concerned. Their statements were recorded on 26.7.1995 more than two months after the alleged incident without any reasonable explanation regarding delay by the Investigating Officer which was rightly discarded by the trial Court. There was also no mention in the FIR with respect to the incident which had taken place at 12.30 P.M. in which Kuldip Dhadwalia had sustained the fatal injuries. He further argued that the prosecution could not lead any evidence worth its name against Dalip Kaisth to prove the charges against him. In nut shell it is submitted that the judgment of acquittal passed under Section 302, 149 and 148 is perfectly legal but canvassed that the conviction of the accused persons deserves to be set-aside. 20.Contra, Shri P.K. Sharma, learned Additional Advocate General has supported the conviction and sentence of the accused persons under Section 307, 149/148 I.P.C. and vehemently argued that the statements of PW18 and PW19 namely, Shashi Dutt and Sanjay Kapoor are worth inspiring confidence. They had seen the accused persons attacking Kuldip Dhadwalia and pushing him from the hill side resulting the head injury to him which caused his death. These facts were supported by the Doctors, as such there is enough material for converting the acquittal of the respondents under Section 302, 148/149 I.P.C. into conviction. 21.We have given our thoughtful consideration to the rival contentions of the parties and have very carefully gone through and reappraised the evidence on record. These facts were supported by the Doctors, as such there is enough material for converting the acquittal of the respondents under Section 302, 148/149 I.P.C. into conviction. 21.We have given our thoughtful consideration to the rival contentions of the parties and have very carefully gone through and reappraised the evidence on record. 22.The prosecution has examined PW11 Ajay Kaushal complainant injured PW2 Vijay Agnihotri and PW12 Sanjay Sharma to prove the offence of attempt to murder whereas, PW18 Shashi Dutt and PW19 Sanjay Kapoor were examined to prove the charge of committing murder, of Kuldip Dhadwalia, by the accused persons. 23.First of all, we would deal with the charge of attempt to commit murder of Shri Ajay Kaushal (PW1) and re-evaluate the relevant evidence led by the prosecution to prove it. 24.PW6 Dula Ram Head Constable vide Rapat No. 18 dated 20.5.1995 recorded in Police Station Boileauganj, on having been informed about the incident at 2 p.m., proceeded to Indira Gandhi Medical College and Hospital Shimla where PW1 Ajay Kaushal was hospitalized. On reaching there he recorded his statement Exhibit PA under Section 154 of the Code of Criminal Procedure wherein he had stated that at about 11.20 a.m. to 12.00 noon, he along with his friends was sitting on the stairs of the library in the University campus, in the meanwhile, 10/12 boys came armed with swords and iron rods in their hands. Accused persons Naginder and Tikender had asked accused Vidya Sagar to finish Ajay Kaushal. In order to escape himself, he (PW1) ran towards the stairs. Accused Naginder and Tikender caught hold of him and Sagar accused hit him with the sword on his left arm. Accused Prem Raj Negi gave a blow of sword on his back which resulted into profuse bleeding. Jagu (Jagdish Thakur) gave a sword blow on his head and accused Khushal gave him the blow of sword on his arm and hands, as a result of which he fell down. The other boys also hit him with iron bars, thereafter they fled away from the spot. He was taken to Ripon Hospital for treatment by his friends and the incident was witnessed by Vijay (PW2), Kuldip Thakur (not examined) and other boys. The Policemen were also present on the spot. 25.On this statement (Ex. The other boys also hit him with iron bars, thereafter they fled away from the spot. He was taken to Ripon Hospital for treatment by his friends and the incident was witnessed by Vijay (PW2), Kuldip Thakur (not examined) and other boys. The Policemen were also present on the spot. 25.On this statement (Ex. PA) a case under Section 147, 148, 149 and 307 of the Indian Penal Code was registered in Police Station, Boileauganj on the same day at 3.45 P.M. vide F.I.R. Exhibit PAA. The distance between the place of incident and Police Station is recorded one and half km in the FIR. However, there was no reference of the second episode, in which Kuldip Dhadwalia sustained injuries around 12.30 p.m. 26.As PW1 said Ajay Kaushal complainant, has given a different version. According to him, there were only seven accused persons armed with swords and iron rods (not ten to twelve persons as stated in the F.I.R.). He further stated that except Shri Sagar, all were having swords in their hands and accused Sagar was having iron rod in his hand. (In the FIR he is alleged to have attacked him with a sword). He was sitting with Vijay Agnihotri (PW2), Sanju (PW12) not named in the FIR and Kuldip in the stairs of the library in the university campus. On seeing the accused persons, they ran towards the library room but before they could reach inside the room, first blow of sword was given on his back by Prem Negi and after that he was able to get inside the room and he picked up a library stool in order to defend himself from the blows of sword and this material fact was not mentioned by him in the FIR, when confronted with it he could not give any content explanation. Further, according to him, Jagdish accused gave the second blow of sword on his fore-head, which caused the bleeding injury. Sagar accused gave him third blow with the khukhri on his left hand, whereas, in the statement Exhibit-PA, he is alleged to have given him the blow with a sword and in the earlier part of his examination-in-chief he is alleged to have an iron rod in his hand. Sagar accused gave him third blow with the khukhri on his left hand, whereas, in the statement Exhibit-PA, he is alleged to have given him the blow with a sword and in the earlier part of his examination-in-chief he is alleged to have an iron rod in his hand. He further stated that Khushal accused hit him with sword on the fingers of his left hand which is the fourth blow, whereas, in the F.I.R. Khushal is alleged to have given him Khukhri blow and thereafter he fell down. He was taken to the Ripon Hospital by Vijay Agnihotri, Sanju and Kuldip and then to I.G.M.C. Shimla. He stated that his statement was recorded at 2.00 P.M. whereas in Exhibit PA the time of his statement is recorded as 3.00 P.M. 27.In his cross-examination he has admitted that he was an activist of ABVP and the accused persons belonged to SFI. He also admitted that accused Khushal Bhardwaj was the President of the S.F.I. unit of the University and Jagdish Thakur was the Vice President. It is also admitted by him at the time of recording his statement Exhibit-PA, PW Vijay Agnihotri and Sanjay Sharma alias Sanju were with him and these two witnesses had taken him to the Dispensary of University after sustaining the injuries. Vijay Agnihotri and Sanju remained with him throughout from the library to dispensary and thereafter in the Hospitals. He stated that he had given the names of the accused persons in his statement Exhibit PA., but when confronted with portion ‘A’ to ‘A’, of his statement Exhibit PA their names did not find mention. He gave the sequence of the injuries inflicted by each of the accused. He has specifically stated that Prem Negi accused had given him the first blow of sword on the entrance of the library and the second blow was given on his fore-head by Jagdish accused and third by Sagar accused on his elbow of the left arm. He was carrying a library stool when the third blow was given by Sagar accused and the stool fell down from his hand. He was confronted with portion B to B of his statement Exhibit PA wherein it was not mentioned. He was carrying a library stool when the third blow was given by Sagar accused and the stool fell down from his hand. He was confronted with portion B to B of his statement Exhibit PA wherein it was not mentioned. He further admitted that he did not state to the Police that Prem Negi had given the blow on his back after Sagar had given him blow on his left arm. However, he was specific in his narration that Prem Negi had given him the first blow on his back. The name of Dalip accused was not mentioned in Exhibit-PA nor any role was assigned to him. He stated that he heard about the second incident in the IGMC Hospital itself when Vijay Agnihotri and Sanju both were with him. He has denied the suggestion that he along with other ABVP activists had attacked the SFI activists near the stairs of the library of the University. 28.PW2 Vijay Agnihotri who was sitting with Ajay Kaushal on the stairs of the library of the University, has stated that accused Naginder and Takinder had told Sagar (Vidya Sagar) that Ajay Kaushal was the person sitting there. They identified Ajay Kaushal and told that he be done to death. Then all of them sitting on the stairs ran inside the library room. While running, accused Khushal and Takinder caught hold of PW1 , but he got rid of him of their clutches but again he was caught inside the library. Ajay Kaushal was having a library stool in his hand for defending himself. Vidya Sagar gave a blow with Khukhri on the elbow of the left hand of Ajay Kaushal. Then Jagdish Thakur had given a blow with a sword on the head of Ajay Kaushal and thereafter Prem Negi gave a blow with a sword on the back of Ajay Kaushal. When Ajay Kaushal was about to fall, accused Khushal gave a sword blow on the finger of left hand of Shri Ajay Kaushal and the other accused persons gave beatings with iron rods and kick to Ajay Kaushal. Thereafter, they ran towards the Cafeteria. He along with Sanjay helped Ajay Kaushal to stand up and took him to the dispensary of the University through short-cut. The wounds were washed in the dispensary and the injured was taken in the Ambulance to the Ripon Hospital. He along with Sanjay accompanied him. Thereafter, they ran towards the Cafeteria. He along with Sanjay helped Ajay Kaushal to stand up and took him to the dispensary of the University through short-cut. The wounds were washed in the dispensary and the injured was taken in the Ambulance to the Ripon Hospital. He along with Sanjay accompanied him. X-ray was conducted in the Ripon Hospital. He telephonically contacted somebody in the University from the Ripon Hospital and then he came to know about the second incident about causing injuries to Kuldip Dhadwalia. When he reached IGMC alongwith Sanju and Ajay Kaushal, Kuldip Dhadwalia was already brought there in an injured condition and on the same night, he was referred to PGI Chandigarh. 29.In his cross-examination, he has stated that at the time when the first blow was given to Ajay Kaushal by Sagar, he was not having stool in his hand. He has stated that neither he saw the second incident relating to Shri Kuldip Dhadwalia nor he did see Kuldip Dhadwalia on the spot during the first incident. He also did not see the occurrence which took place inside the library room and he only went there after the occurrence and the accused persons had already left the place. Further, according to him, even Sanjay (PW12) did not go towards the Cafeteria area of the University and none of them had seen the accused persons on their way from Library Hall to the Dispensary. Thus on appreciation we find that his testimony goes contrary to the version of PW1 Ajay Kaushal with respect to the injuries and weapon used by the accused persons. 30.PW-12 Sanjay Sharma, has stated that around 11.30 A.M. to 12.00 Noon, he was sitting on the stairs of the library of the University along with Ajay Kaushal PW1. All of a sudden, the accused persons came there armed with swords and Khukhri in their hands and accused Naginder and Tikender identified Ajay Kaushal and told accused Vidya Sagar that they should give beatings to Ajay Kaushal and kill him. He gave a different sequence of the events. He stated that first blow was given by Prem Negi accused with a sword on the back of Ajay Kaushal when he was entering the door of the library hall. He gave a different sequence of the events. He stated that first blow was given by Prem Negi accused with a sword on the back of Ajay Kaushal when he was entering the door of the library hall. Thereafter Ajay Kaushal ran towards the general section of the library and at that time, second blow was given by Jagdish accused with a sword on his fore-head. Ajay Kaushal picked up a Library stool to defend himself and during that process, Vidya Sagar accused gave the third blow of khukhri on the left elbow of Ajay Kaushal. Thereafter, the accused persons encircled him and accused Khushal gave him the fourth blow of sword on the left finger of Ajay Kaushal. The other accused persons hit him with iron rods and during this process, the glass-panes of the door had broken and the accused persons fled away. According to him, he had seen the occurrence from a distance of about 25 feet and then he went along with Vijay Agnihotri to Ajay Kaushal. Subsequently Kuldip Thakur also reached there and then they took Ajay Kaushal to the General room, thereafter to the dispensary. Vijay Agnihotri took Ajay Kaushal inside the dispensary, then they removed him to Ripon Hospital in the Ambulance. He along with Vijay Agnihotri was with the injured in the hospital till his hospitalization in IGMC hospital Shimla. Later he is alleged to have witnessed the recovery of Khukhri (Dagger) Exhibit P3 allegedly at the instance of Sagar accused. 31.In his cross-examination, he also stated that he did not see Kuldip Dhadwalia on that day. He denied having made any statement to this effect that he had seen him on that day when confronted with his statement Ex. DB recorded under Section 161 Cr. P.C. He is alleged to have seen the incident from behind the pillars. Further he has stated that Kuldeep thakur (not examined) had accompanied them upto dispensary, thereafter he met them in IGMC Hospital Shimla. He was also confronted with his statement Ex. DB, wherein there was no mention of Library stool taken by Ajay Kaushal to defend himself. Thus it has been seen that this witness has also given a different version about the blows given by the accused persons and considerably improved his earlier statement Ex. DB. He was also confronted with his statement Ex. DB, wherein there was no mention of Library stool taken by Ajay Kaushal to defend himself. Thus it has been seen that this witness has also given a different version about the blows given by the accused persons and considerably improved his earlier statement Ex. DB. 32.The aforesaid alleged eye witnesses have stated that PW1 Ajay Kaushal got five injuries on his person i.e. four with the sharp edged weapons and many others with iron rods and also with kicks and blows. But this fact is not corroborated by the medical evidence. PW11 Dr. Ravinder Mokta of Riopon Hospital, Shimla was first to examine Ajay Kaushal and found only two injuries on the person of Ajay Kaushal as follows:- “1. There was incised wound 5 cm x 2 cm x 1 cm over middle of anterior part of scalp. Margins were covered with fresh blood. Gallea apuneurtica was cut. 2. There was incised wound over the posteromedial aspect of left elbow extending from olecrenion to forearm size of which was 10 cm x 4 x 3 cm Muscle and bone were exposed. Upper part of ulna was fractured and lower part of numerous were exposed completely. Wound was filled with blood.” 33.No other injuries were found on his person, as stated by the above witness. PW 11 Doctor was not shown any sword or the Khukhri to extract his opinion whether such type of injuries could be caused by the aforesaid weapons, whereas in his cross-examination, he has admitted that if a person falls on the splinters of glass or bottle, he would sustain sharp edged injuries. Dr. Suman Gupta (PW3) Radiologist stated that X-ray film Exhibit PC did not show any mark of cut on Ajay Kaushal. Thus it was not possible to say as to where a particular fracture had been caused as a result of the cut caused by the sharp edged weapon. 34.On the critical examination of the aforesaid evidence, we do find a marked difference between the first information report Exhibit-PAA recorded on the basis of Exhibit -PA, the statement of Ajay Kaushal (PW1) and his own statement made in the court. He has made material improvements in his deposition. The sequence of the attack and inflicting blows given by the accused persons Jagdish Sagar and Khushal named in the FIR is differently given by him. He has made material improvements in his deposition. The sequence of the attack and inflicting blows given by the accused persons Jagdish Sagar and Khushal named in the FIR is differently given by him. Other accused have not been named in the FIR. The alleged eye witness PW2 Vijay Agnihotri and Sanjay Sharma (PW12) have further contradicted his version and made material improvements in their statements. The injuries as described by PW1 and the alleged eye witnesses do not synchronize with the medical evidence, there is total inconsistency. Even the place of the alleged occurrence shown in the site plan Ex. PW20/A and the recovery of splinters is different. The story of Library stool introduced, during the time of trial by Ajay Kaushal and his witnesses, does not figure the earliest version given to the Police. Even the photographs Exhibit P2/1 to P2/5 do not show the presence of any librarystool on the spot. But no one from the police department was examined to lend strength to the prosecution version. Even Exhibit PU, MLC of Ajay Kaushal shows that he was accompanied by the Policemen in Ripon Hospital as is evident from column No. 3 wherein the name of the constable Bachittar Singh is mentioned who had taken the Police docket for the examination of the injured on 20.5.1995 at 1.30 P.M., which means that the police had come to know about the incident even before the information received by PW6 Head Constable Dula Ram telephonically in the police station. Even PW1 Ajay Kaushal made the statement at 2.00 P.M. but there is no such statement except the statement Ex. PA which was alleged to have been taken down at 3 p.m. in IGMIC Hospital itself. The FIR was lodged on its basis at 3.45 p.m. By that time, the second incident with respect to giving beatings to Kuldip Dhadwalia had already taken place and it was also in the knowledge of the Police which did not find mention in the FIR nor it was even referred to in the subsequent statements of the witnesses recorded immediately thereafter. The FIR was received by the Magistrate at Shimla itself at 6.55 p.m. i.e. after three hours from the time of its registration. The cause of delay is also not mentioned. The FIR was received by the Magistrate at Shimla itself at 6.55 p.m. i.e. after three hours from the time of its registration. The cause of delay is also not mentioned. The site plan Exhibit P20/A does not mention the place from where the alleged eye witness had seen the occurrence and there is no reference at whose instance it was prepared. Further the M.L.C. Ex. PU shows that PW1 Ajay Kaushal was brought with the alleged history of being beaten by some body on 20.5.1995, which means that the assailants were not known at that time. 35.All the above factors coupled with the contradictions and more specifically that there had been a rivalry between the two groups, i.e., ABVP and SFI in the University, the false implication of the respondent-accused persons who were the office bearers of SFI cannot be ruled out in view of the above glaring contradictions and material improvements during the trial in the statement of the injured and his witnesses make the case of the prosecution highly doubtful and give rise to a reasonable doubt about the complicity of the accused persons with the alleged crime. Accordingly, their conviction for the aforesaid offences under Section 307, 148 and 149 of the Indian Penal Code is un-sustainable. As such their appeal deserves to be allowed. 36.In so far as, the murder of Kuldip Dhadwalia by the accused persons is concerned, it is also not free from doubt. To prove the charge of murder the prosecution has heavily relied upon the statements of PW-18 Shashi Dutt, who fought the election for the post of Vice-President ship of Students Central Association as a ABVP candidate in the year 1993-94 and lost it against a SFI candidate. Again he pitched himself for the said post against accused Jagdish (SFI) and faced the defeat in the year 1994-95. PW 19 Sanjay Kapoor is the another ABVP sympathizer whose statement is also banked upon. 37.PW 18 Shashi Dutt has stated that at that time, he was a student of Yoga in H.P. University but he admitted in his cross-examination that he had not attended any lecture during May, 1995. He did not appear in the examination of Yoga. He has stated that the classes of Yoga were held in Avalodge Hostel but again said that near Ava Lodge Hostel he was not definite about it. He did not appear in the examination of Yoga. He has stated that the classes of Yoga were held in Avalodge Hostel but again said that near Ava Lodge Hostel he was not definite about it. He even did not know the amount of fee paid by him during the year 1995 of Yoga Classes. He also did not possess the receipt of payment of fee made for the Yoga classes. He has denied that after passing his geography in the H.P. University in the year 1994, he was never the student of the University. He even did not know that after seeing the alleged incident on 20.5.1995 where he had gone on 21.5.1995. Against the above background, his statement is required to be scrutinized very carefully. With respect to the incident, he has stated that on 20.5.1991, at about 12.30 P.M., he alighted himself from the bus at the University Chowk and sat down on a Bench in front of Cafeteria. He saw Kuldeep Dhadwalia running towards the University-chowk from the Administration Block/library side. He was followed by accused persons having swords and iron rods and khukhris in their hands. Accused Khushal Bhardwaj, Jagdish and Prem Chand Negi were having swords in their hands while accused Vidya Sagar was having khukhri and others were equipped with iron rods. They caught hold of Kuldeep Dhadwalia and pushed him towards back side of the Cafeteria. Many persons had seen this incident to whom he did not identify. Kuldeep Dhadwalia was hit by the swords and iron rods. Vidya Sagar accused gave a khukhri blow on the left of Kuldeep Dhadwalia. But his MLC Ex. PF did not show any cut injury on his left side. He further stated that on receiving injuries, he fell down and thereafter the accused persons dragged him and threw him at a distance of about 50 feet and finally rolled him down to the Shankli or Cheritan road. At that time, Sanjay Kapoor (PW19) was also standing there. Thereafter, he came back and sat down on the Bench. He saw the accused persons running towards the Students Central Association’s room, whereas, Vidya Sagar went towards Boileauganj, thereafter he went to the place where Kuldeep Dhadwalia was lying injured. The blood was oozing out from his mouth and nostrils. He was unconscious. Thereafter, he came back and sat down on the Bench. He saw the accused persons running towards the Students Central Association’s room, whereas, Vidya Sagar went towards Boileauganj, thereafter he went to the place where Kuldeep Dhadwalia was lying injured. The blood was oozing out from his mouth and nostrils. He was unconscious. He along with Sanjay Kapur lifted him and took him to the IGMC Hospital in Police Gypsy from where he was referred to PGI Chandigarh. His statement under Section 161 of the Code of Criminal Procedure was recorded on 26.7.1995, i.e., after about two months of the alleged incident. In his cross-examination, he has stated that he did not inform the police. If he did not inform the police, how police came to know about his presence on the spot and how police Gypsy happened to be there on the spot is not known. However, he further stated that the police was with Kuldeep Dhadwalia when he was taken to the Hospital but even then he did not make any statement about this incident to the police. According to him, it was thereafter he got the summons for making his statement. He received the summons at his village Chopal to appear as a witness. He has admitted that during the time when the assault had taken place, there were about seven police constables in the University campus near the Chowk where he was sitting. Surprisingly, none of them was cited as a witness nor were examined during the trial. If they were present, we fail to understand why the policemen did not intervene and tried to avert the incident. Even he has also stated that the police officials who were standing at the Chowk did not intervene. He admitted that when Dhadwalia was pushed and given beatings was not visible to him. He denied that Shri Dhadwalia had jumped out of panic of his own and lost his equilibrium as a result of which he rolled down. PW19 Sanjay Kapoor has also made the similar statement. According to him, he had witnessed the quarrel near the Cafeteria. At that time, he was residing in the University Hostel but he had just reached in the morning around 4 a.m. from Dharamshala in the night bus. He had to appear in CDS Examination on 21.5.1995. PW19 Sanjay Kapoor has also made the similar statement. According to him, he had witnessed the quarrel near the Cafeteria. At that time, he was residing in the University Hostel but he had just reached in the morning around 4 a.m. from Dharamshala in the night bus. He had to appear in CDS Examination on 21.5.1995. On reaching Shimla, he went to the house of Mohinder Singh to enquire about the centre of examination and roll number in village Shangti which is at a distance of about 2 kms from the University. He further stated that while coming back from Shangti to the University, he came through Cheritan road which is at a distance of about one and half km and witnessed the alleged occurrence. On the night of 21.5.1995, he had left for his village. Thereafter, he returned in June to appear in fourth semester of the Public Administration. He made statement in the month of July, 1995 to the Police about the said incident but he did not disclose about the said incident to anyone. Thus his conduct is quite unnatural. According to him he remained in the IGMC Hospital till 11.00 P.M. on 20.5.1995 even at that time police was present there then why he did not make his statement to the police that he was an eye witness to the above episode. According to him, on 20.5.1995, Shashi Dutt was in the hostel which fact was not deposed by PW18, but according to him he had accompanied him to the IGMC at 11.00 P.M. and for the night returned to the hostel, he did not know in which room of the hostel he stayed for the night. Thus, his statement is also full of contradictions, embellishment, hence not believable. 38.DW1 Shri Ashwani Sharma has proved the news report Exhibit DD which was given by him after consulting the Director General of Police Shri B.S. Thakur. He had also cross-checked the contents of the news item before he had sent the same for publication. The news item, Exhibit DD, that there was a clash between the students in the University in which Ajay Kaushal was injured and Shri Dhadwalia had jumped from the building in panic and sustained the injuries aprobalblises the defence version. 39.Kuldeep Dhadwalia was medically examined at IGMC Shimla at 2.20 p.m. by Dr. The news item, Exhibit DD, that there was a clash between the students in the University in which Ajay Kaushal was injured and Shri Dhadwalia had jumped from the building in panic and sustained the injuries aprobalblises the defence version. 39.Kuldeep Dhadwalia was medically examined at IGMC Shimla at 2.20 p.m. by Dr. Sujeet Raina (PW4) and issued the Medico legal certificate Exhibit PF where in it is stated that he was brought by one Shri Kuldip Sharma at 2.20 p.m. with the alleged history of being beaten up. He was conscious but irritable and oriented in time place and person. He was also accompanied by Constable Diwan Chand. The number of the police docket is given in Ex. PF. HC Dula Ram was also in the hospital (IGMC) when Kuldeep Dhadwalia was conscious, he could have recorded his statement but police made no attempt in this regard. However, the Doctor on his examination found the following injuries on his person: “1. There was incised wound on right thigh on the inner aspect 6 cm x 6 cm into muscle deep. Facia cut in the line of wound. Muscle protruding. Edges are clean cut without laceration. There was no contusion surrounding the edge. The wound was elliptical in shape with tailing towards both ends. Bleeding was present. Haematoma around which is tender to touch. The site was 66 cm from right heel 38 cm from right anterior superior iliac spine and 25 cm from right tibial tubercle. 2. Abraded area 4 cm x 4 cm overlying right tibial tubercle red coloured. 3. Lacerated wound 5 cm long x 2 mm broad with lacerated margins. Bleeding positive. Fat proroguing 4 cm dorsal to olecranon process. Haematoma around, which was tender to touch. Surrounded by abraded area 5 cm x 5 cm red coloured. 4. There was small multiple abrasions on nose red coloured. Clotted blood in right ear. 5. Clotted blood in right ear. 6. Laceration 1 cm x 1 cm chin bleeing. 7. Laceration under right nostril 2.5 cm x 5 cm bleeding. 8. Multiple small abrasions forehead, red coloured. 9. Small multiple abrasions in front of chest red coloured.” 40.Injury No. 1 was stated to have been caused with sharp edged weapon and injuries No. 2 to 9, with blunt weapon. The probable duration of the injuries was fresh. 7. Laceration under right nostril 2.5 cm x 5 cm bleeding. 8. Multiple small abrasions forehead, red coloured. 9. Small multiple abrasions in front of chest red coloured.” 40.Injury No. 1 was stated to have been caused with sharp edged weapon and injuries No. 2 to 9, with blunt weapon. The probable duration of the injuries was fresh. He was referred for X-ray of the hip joint and also to the Orthopedics and uro surgery. Injuries No. 1 and 3 were found to be grievous and other simple. Injury No. 1 could have been caused by Khukhri or sword and the remaining with the iron rods and first blows. Except injury No. 1, others could have been caused by a fall from a higher place. In his opinion, Khukhri (Dagger) Exhibit P3 could not cause injury No. 1. He has admitted that injuries with a broken glass could cause the incised wound Kuldeep Dhadwalia was referred to PGI Chandigarh were he remained hospitalized till 25.6.1995. After his death his post-mortem was performed by Dr. Munish Goel (PW17). He has given the details of the injuries found on the dead-body. In his opinion, the cause of death was due to shock as a result of head and multiple injuries and septicemia thereof. The death occurred within six days of the injuries. In his cross-examination, he has admitted that septicemia causes shock and it is only the Doctor who had given the treatment in this case who can tell as to how much time syndrome of septicemia devolved in the case. 41.On the careful perusal of he aforesaid statements of the witnesses, the testimonies of PW 18 Shashi Dutt and PW19 Sanjay Kapur are not free from doubt. Therefore, it would be hazardous to base the conviction of the accused persons on their testimonies for their offence of murder. Thus it was rightly rejected by the learned trial Court. 42.In result, the findings of acquittal for the offences punishable under Sections 302, 149 and 148 of the Indian Penal Code, recorded by the learned trial Court are borne out from the record, which requires no interference. Accordingly, Criminal appeal No. 21 of 1998 sans any merit and deserves to be dismissed. 42.In result, the findings of acquittal for the offences punishable under Sections 302, 149 and 148 of the Indian Penal Code, recorded by the learned trial Court are borne out from the record, which requires no interference. Accordingly, Criminal appeal No. 21 of 1998 sans any merit and deserves to be dismissed. 43.Therefore, for the reasons aforesaid criminal appeal No. 21 of 2008 filed by the State is hereby dismissed and the criminal appeal No. 125 of 1997 filed by the convict-appellants against the judgment of conviction and sentence passed by learned trial Court is hereby set aside and their appeal is allowed. Consequently, they are acquitted of the charges framed against them. Fine if any deposited by the appellants be refunded to them forthwith. 44.Both the appeals are accordingly disposed of. Send down the records. M.R.B. ———————