Vivek Singh Thakur, J.

1. Present appeal is preferred by State of H.P. assailing acquittal of respondent vide judgment dated 21.08.2009 passed by the Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P., in Session Trial No. 1/7 of 2008 in case FIR No. 92/2005 under Section 304 IPC, registered in Police Station Ghumarwin.

2. Prosecution case is that on 1.06.2005 at about 6.00 PM deceased Harnam Singh was present at Badhaghat. Gautam Bus bearing No. HP-23-4323 plying on Ghumarwin-Berthin route reached there. Respondent was conductor in that bus. Harnam Singh intended to board bus but he was prevented by respondent and was pushed back with fist and kick blows. Thereupon Harnam Singh fell down from the bus on the road. However, on intervention of people of area and passengers of bus, respondent allowed Harnam Singh to board the bus. On reaching Kotlu Chowk at about 6.15 PM, respondent pushed Harnam Singh and threw him out of the bus on the road. PW-6 Mukhtiar Singh, co-villagers of deceased, was transporting timber in his tractor from Himar to Sunahni and was crossing Kotlu Chowk alongwith PW-7 Bhim Dev, Rajpal, Duni Chand, Sita Ram and his driver Hans Raj. He noticed deceased lying on the road groaning in pain. He gave water to deceased and inquired the matter. Deceased told him that he was beaten and pushed out from the bus by conductor of private bus. PW-6 Mukhtiar Singh telephonically informed mother of deceased and on her request he alongwith his companions took deceased to his village Manan in his tractor in their lap. On reaching his village deceased was alighted from tractor and was offered water after laying down on road side near a shop. In the meantime wife of deceased PW-4 Naresh Kumari, PW-3 Karam Singh and others also gathered there. After taking water deceased was conscious for some time and on inquiry he disclosed to persons present there that people of Badhaghat were good and conductor of private bus was bad because the conductor of Gautam bus beat him and pushed him out of the bus and on intervention of passengers and people present there, he was allowed to board the bus but after reaching Kotlu conductor again pushed and threw him out of the bus. Thereafter deceased became unconscious. Pharmacist Prakash Chand available in the village was called to give first-aid to deceased. Before taking to hospital deceased had expired at about 8.30 PM.

3. At abut 9.30 PM, PW-3 Karam Singh telephonically intimated police of Police Station Talai. After receiving information report No. 28 dated 01.06.2005 Ex. PW-13/A was recorded in Police Station Talai and PW-12 Rai Singh SHO rushed to spot alongwith police officials and recorded statement of PW-3 Karam Singh Ex. PW-3/A under Section 154 Cr.P.C.

4. After recording statement Ex. PW-3/A, PW-13 Rai Singh found that place of occurrence was in jurisdiction of Police Station Ghumarwin. Therefore, statement Ex. PW-3/A was sent to Police Station Ghumarwin as Rukka for registration of FIR whereupon FIR Ex. PW-14/A was registered in P.S. Ghumarwin and further investigation was completed by PW-14 Lal Singh SHO Police Station Ghumarwin.

5. On completion of investigation, challan was put in the Court and respondent was charge sheeted under Section 304 IPC. Prosecution examined 14 witnesses to prove its case. Statement of respondent was recorded under Section 313 Cr.P.C. and no defence evidence was led by him. On conclusion of trial, respondent was acquitted.

6. We have heard learned counsel for the parties and have also gone through the record.

7. In his statement Ex. PW-3/A, PW-3 stated that he, retired Sub Inspector from Police Department, was resident of village Manan. On 01.06.2005 at about 7.00 PM he was sitting in his courtyard. On noticing PW-6 Mukhtiar Singh, PW-7 Bhim Dev, Sita Ram, Raj Pal and Duni Chand coming with Harnam Singh in their lap in tractor loaded with timber, he went on the road. On inquiry they told that Harnam Singh was lying on the road at Kotlu Chowk and PW-6 Mukhtiar Singh informed that Harnam Singh had disclosed that Bus conductor had pushed him down. Harnam Singh who was unconscious at that time, was laid down near a shop on side of the road and was given water and after taking water Harnam Singh gained consciousness. On inquiry, in presence of Maan Singh, Sita Devi wife of complainant (PW-3) and PW-4 Naresh Kumari wife of Harnam Singh, disclosed that conductor of Gautam Bus prevented him from boarding bus at Badhaghat by giving kick and fist blows and knocked him down and thereafter he was allowed to sit in bus on intervention of people and passengers and on reaching at Kotlu Chowk at about 6.15 PM conductor again pushed him out of the bus and threw on the road. Thereafter deceased became unconscious. First-aid was provided to deceased by calling pharmacist Prakash Chand. However, after sometime deceased succumbed to his injuries.

8. PW-1 Pritam Chand and PW-2 Subhash Chand were traveling in Gautam Bus Service on the fateful day. They admitted and proved their travel tickets Ex. P-1 to P-4 issued by respondent to them on that day. PW-11 Lekh Ram was present at Badhaghat on that day. These witnesses resiled from their statements recorded by Police under Section 161 Cr.P.C. On request of learned public prosecutor they were declared hostile and were subjected to cross-examination by public prosecutor as well as defence counsel.

9. It is settled law that statement of a hostile witnesses is not to be brushed aside in totality for the reasons that witness was turned hostile but statement of such witness can be taken into consideration in favour of prosecution or defence subject to corroboration by other evidence on record.

10. PW-1 Pritam Chand, in examination-in-chief, stated that deceased boarded bus at Badhaghat and de-boarded at Kotlu but the respondent did not man-handle him at Badhaghat or push and throw him from the bus at Kotlu. However, in cross-examination by public prosecutor he stated that it was correct that deceased was allowed to board the bus at the request of passengers.

11. PW-2 Subhash Chand, in his examination-in-chief, stated that deceased wanted to board the bus but respondent prevented him because he was drunk. In cross-examination by public prosecutor he also admitted that it was correct that deceased was allowed to board the bus by respondent at the request of passengers in the bus.

12. In cross-examination by defence counsel, PW-1 Pritam Chand admitted suggestions put to him by defence counsel that it was correct that there were some ladies sitting in the bus who insisted conductor not to allow deceased in the bus because he abused. Similarly, PW-2 Subhash Chand admitted suggestion put by defence counsel that it was correct that ladies in the bus had insisted the conductor not to accommodate a intoxicated person in the bus. PW-1 Pritam Chand and PW-2 Subhash Chand again admitted that it was correct that respondent allowed Harnam Singh to sit in the bus on intervention of some passengers.

13. It emerged from statements of PW-1 and PW-2 that deceased was present at Badhaghat on 1.06.2005 at about 6.00 PM who was prevented from boarding Gautam Bus by respondent conductor but was allowed to board the bus on intervention of aged passengers. Suggestion put to PW-1 was that reason for objecting entry of deceased was that he was abusing whereas as per suggestion put to PW-2 lady passengers insisted respondent not to allow intoxicated person in the bus. Statements of these witnesses and suggestions put to them by defence counsel proved prosecution version that deceased was trying to board the bus at Badhaghat on 1.06.2005 at 6.15 PM and was prevented from doing so by respondent at first instance but was allowed later on at the request of passengers. This portion of statement of PW-1 and PW-2 was duly corroborated by PW-3 Karam Singh, PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev who deposed similar facts on the basis of statement made by Harnam Singh before his death.

14. Respondent, in explanation given in his statement recorded under Section 313 Cr.P.C., also admitted that he was not allowing deceased to board the bus at Badhaghat. His answer to question No. 28 is as under:-

When the bus reached at Badhaghat, Harnam Singh was found intoxicated and the ladies passengers complained that the deceased was not sitting properly and therefore, he should not be allowed to travel in the bus. On the intervention of elderly people that the deceased should be allowed to travel up to Kotlu Chowk I allowed him to travel. I dropped him at Kotlu Chowk. Therefore, I did not know as what had happened to him. I also gave him the polethene bag which he left in the bus.

15. PW-9 Dr. Satish Sharma conducted postmortem of deceased. As per postmortem report deceased died due to respiratory failure as a result of ante-mortem injuries to cervical spine and thorax and following injuries were noticed on the body of deceased:-

* Ante-mortem abrasion on right arm over shoulder joint 7 cm x 3 cm.

* Ante-mortem abrasion on right iliac joint 12 cm x 8 cm size.

* Ante-mortem abrasion on the left side of back 42 cms x 5 cms.

* Ante-mortem abrasions on left shoulder joint 12 cms. x 5 cm.

* Ante-mortem abrasions on right knee joint 3 cms x 2 cms.

* No mark of ligature on the neck were seen.

* On disection of spinal cord, there was fracture of verterbra of c2 c3 and c4 with bleeding on the adjoining verterbra was found.

* There was a fracture of rib on right side of chest 7th rib.

* There was fracture of 10th rib on the left side.

* Pleurac was congested and there was collection of blood about 600 ml to 1 litre on the left side of the chest cavity.

* Right lung was normal. Left lung had lacerated wound 5 cm x 2 cms. on middle looe. Pericardium was normal and congested. There was fracture of upper end of humerus on the left side.

16. Postmortem was conducted on 2.06.2005 at 11.00 AM. Probable time between injury and death was 30 minutes to six hours, and time between death and postmortem was 0 to 24 hours. Viscera of deceased was sent for chemical analysis to State FSL and as per chemical analysis report Ex. PW-14/H no poison or alcohol was found in his liver, kidney, splene or small intestine.

17. Deceased had received multiple serious injuries. PW-9 Doctor Satish Sharma opined that fractures suffered by deceased were sufficient to cause death in normal course. He also stated that it was incorrect to suggest that such injuries could be sustained on falling on hard surface from height of 2 feet. He admitted that such injuries could be caused on falling on height of more than 5 feet. He stated that such injuries were not possible on falling from the stationary vehicle and also such injuries were not possible on falling of wooden logs on a person. He denied that a person could not speak on receiving injuries on cervical spine, ribs and lungs. He denied that such injuries were possible on keeping a person in trolly of moving tractor without shock absorbers. He admitted that such injuries were possible on falling from running trolly. It can be concluded from statement of PW-9 Doctor Satish Kumar that deceased had fallen from moving vehicle.

18. There is direct evidence as well as admissions of respondent with regard to fist part of episode happened at Badhaghat. However, there is no direct evidence of pushing down and throwing deceased out of bus by respondent at Kotlu Chowk.

19. Prosecution has relied upon statement of PW-3, Karam Singh, PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev to prove second part of incident. All these witnesses were present in village where deceased narrated incident. They are primarily hear say witnesses. Hear say evidence in normal course is not admissible. However, Section 6 of the Indian Evidence Act is exception to general rule where under the hear say evidence is admissible.

20. The Apex Court in case Javed Alam Vs. State of Chhattisgarh and another (2009) 6 Supreme Court cases 450 has held as under:-

19. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res-gastae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. In Gentele Vijayavardhan Rao v. State of Andhra Pradesh it was held in para 15 as follows:

"Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is commonly known as res-gestae. They are in the nature of exception to hearsay" rule. Section-6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res-gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it.

21. The Honble Supreme Court in case State of Madhya Pradesh vs. Ramesh and another (2011) 4 Supreme Court cases 786 has held as under:-

18. In Sukhar v. State of U.P. (1999) 9 SCC 507 , this Court has explained the provisions of Section 6 of the Evidence Act, 1872 observing that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" that it becomes relevant by itself...

22. The Honble Supreme Court in case Krishan Kumar Malik Vs State of Haryana (2011) 7 Supreme Court cases 130 has held as under:-

34. We shall now deal with Section 6 of the Act, which reads as under:-

"6. Relevancy of facts forming part of same transaction-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 35. Blacks Law Dictionary defines Res Gestae as follows:

(Latin: "things done") The events at issue, or other events contemporaneous with them In evidence law, words and statements about the res gestae are usually admissible under a hearsay exception (such as present sense impression or excited utterance).

36. The said evidence thus becomes relevant and admissible as res gestae under Section 6 of the Act.

37. Section 6 of the Act has an exception to the general rule where-under, hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts Crl. A. @S.L.P. (Crl.) No.8021 of 2009 and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter....

23. Deceased narrated incident to PW-3 Karam Singh and others at about 7.30 PM and died at about 8.30 PM. Police was informed at about 9.30 PM stating specifically that deceased died because of pushing down by conductor from bus. There was no such interval or gap of time between narration of incident and reporting to the police so as to allowing fabrication or manipulation by complainant and other witnesses. Possibility of such fabrication was not there particularly when there was no enmity of these witnesses with respondent and respondent was stranger to them.

24. Applying ratio of aforesaid cases to the statements of PW-3 Karam Singh, PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev it can be concluded their statements that deceased told them that conductor of Gautam Bus Service had pushed him and thrown out bus would become admissible under Section 6 of Evidence Act. Even if their statements become admissible with regard to disclosure of manner in which deceased received fatal injuries, it is yet to be considered that whether their statements are reliable so as to convict respondent under Section 304 IPC.

25. In present case PW-3, Karam Singh PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev were strangers to respondent and there was no ulterior motive or enmity so as to be attributed as motive of these witnesses to implicate respondent falsely. Deceased was brought to his village at about 7.00 PM and he expired between 8.30 and 9.30 PM. Before that he narrated the incident to persons present before him including PW-3 Karam Singh, PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev. Police was informed by PW-3 Karam Singh at 9.30 PM specifically stating that deceased pushed out from bus by conductor, had expired after reaching home. Thereafter statement of PW-3 under Section 154 Cr.P.C. Ex. PW-3/A was recorded during the same night. In the said statement also incident as narrated by deceased Harnam Singh was recorded. In Ex. PW-3/A there is reference of presence of PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev at the time of narration of cause of injury sustained by deceased. All of them corroborated version reported to the Police at first instance immediately after death of deceased.

26. Fair admissions by these witness in their cross-examination rendered them trustworthy. PW-3 Karam Singh admitted that Harnam Singh was from his family and was mentally disturbed 5-6 months earlier to the incident but clarified that after treatment at Shimla he was alright. He admitted that deceased remained mentally disturbed for 3-4 months. He also admitted with 5-6 years prior to incident deceased used to lie on the road after consuming liquor. PW-4 Naresh Kumari also admitted that her husband used to take wine but she stated that he was not taking since 3-4 months prior to incident because of his illness. She admitted that her husband had left practicing at Bar. However she denied that deceased used to go in morning and come back drunken in the evening. These witnesses have admitted the fact in natural manner and their statements inspiring confidence rendering them reliable.

27. There was a positive suggestion also to PW-4 Naresh Kumari that her husband had disclosed incident to herself only and none less, which was denied by PW-4 Naresh Kumari. From this suggestion, it can be inferred that it was admitted that deceased had disclosed occurrence to his wife PW-4 Naresh Kumari.

28. PW-3 Karam Singh, his statement recorded under Section 154 Cr.P.C. and in his deposition in Court as well as PW-4 Naresh Kumari, PW-6 Mukhtiar Singh and PW-7 Bhim Dev in their statements stated that deceased Harnam Singh told them that he was not allowed by respondent to board the bus at Badhaghat by throwing on the road from the bus by giving kick and fist blows but was allowed to board the bus after intervention of passengers and other people and respondent had pushed and thrown out deceased from bus at Kotlu Chowk causing injuries to him. Soon after this statement deceased expired. There his statements to these witnesses tantamounts to oral dying declaration.

29. It is apparent from cross-examination on behalf of respondent that his defence was that at the time of incident deceased was highly intoxicated but said plea of respondent was completely negated by scientific evidence Ex. PW-14/H i.e. report of chemical analysis of State FSL Junga. As per this report no traces of poison or alcohol were found in liver, kidney, splene or intestine of deceased.

30. PW-6 Mukhtiar Singh also denied that when Harnam Singh met them at Kotlu he was drunk and was having bottle of liquor with him. He denied that they threw Harnam Singh in the rear portion of the tractor. PW-7 Bhim Dev also denied that deceased was found drunk at Kotlu.

31. As per prosecution case deceased was beaten at Badhaghat only and at Kotlu he was only pushed and thrown out of the bus by respondent. PW-3 stated so in his statement under Section 154 Cr.P.C. Ex. PW-3/A and also deposed similarly in the Court. Therefore, there was no variance in his statement on this fact as referred by the trial Court. Learned Sessions Judge referred statements of PW-1 and PW-2 made in examination in chief wherein they denied the fact of pushing down deceased from bus at Kotlu and Badhaghat and also allowing boarding the bus on intervention of local people and passengers at Badhaghat whereas admissions of these witnesses in cross-examination were ignored by the trial Court. Learned Sessions Judge picked up parts of statements of PW-1 and PW-2, whereas statements as whole were to be considered.

32. PW-11 Lekh Ram was examined as a witness to the occurrence taken place at Badhaghat but in the Court he desisted to support prosecution case and was declared hostile witness. In his cross-examination by learned Public Prosecutor nothing material could be elucidated with regard to incident. He was examined in Court on 15.01.2009. He was also summoned for 11.11.2008. As per order sheet of trial Court he could not be examined on that day because of his absence despite service. However, in his cross-examination he admitted his presence in Court on 11.11.2008 but despite that he had returned back without appearing in the Court for reasons best known to him. He denied all other suggestions put by learned Public Prosecutor to him he was not cross-examined by defence counsel.

33. Learned Sessions Judge has relied upon PW-11 for disbelieving prosecution version but he failed to take notice that this witness was served for 11.11.2008 and was present court premises on that day but did not appear in the Court for his examination as witness. It cast doubt on his veracity. Therefore, PW-11 cannot be relied upon for disbelieving prosecution story. Learned Sessions Judge has also considered non-examination of Pharmacist Prakash Chand fatal for prosecution case as his examination was considered necessary for assessing mental capacity of deceased before his death. Prakash Chand Pharmacist was called for first-aid after Harnam Singh become unconscious and he was never present at the time of narration by deceased to PW-3 Karam Singh, PW-4 Naresh Kumari, PW-6 Mukhtiar Singh, PW-7 Bhim Dev and others. Moreover first part of incident as narrated by Harnam Singh before his death was duly corroborated by other evidence. Therefore, there was no reason to doubt his mental state or capability to doubt his narration about later part of incident.

34. In evidence on record, there is nothing to prove or even to suggest that respondent was having intention to cause death of deceased. Therefore, in view of above discussion respondent is guilty of committing offence under Section 304-II, IPC.

35. The trial Court has committed a mistake in acquitting respondent. Prosecution has established the guilt of respondent beyond reasonable doubt by leading clear, cogent, convincing and reliable evidence. Findings returned by the trial Court cannot be said to be based on correct and complete appreciation of material on record, as such, the same are reversed. Hence, the appeal is allowed and respondent is convicted for committing offence under Section 304-II, IPC. 36. Bail bonds furnished by the respondent-convict stand cancelled.

37. The respondent be produced for hearing on quantum of sentence on 22.09.2016. List on 22.09.2016. Registry is directed to prepare production warrant.