H.N. Kapoor, J.
1. These are two appeals against the same order and judgment dated 27-2-1973 of the II Temporary Civil and Sessions Judge, Etawah and can be conveniently decided by a common order. Atar Singh and Mahesh Singh in Cr. Appeal No. 557 of 1973 have been convicted Under Section 127 of the Railways Act and have been sentenced to three years' R. I. each. Udaibir Singh in Cr. Appeal No. 558 of 1973 has also been convicted Under Section 127 of the Railways Act and sentenced to three years' R. I. All of them were prosecuted Under Section 332, I. P. C. also but were acquitted under that section.
2. The prosecution case, as revealed in the first information report and by the prosecution evidence briefly stated, is as follows. Goods Train driven by engine No. 18009 which was going to Delhi side had to stop at Balrai railway station because there was huge crowd on the railway track on 18-7-1970. The crowd had collected because of the fair of Brahmi Devi. The Station Master then asked the police constables on duty to remove the crowd from the track and allow the goods train to pass. The three constables including Sri Krishna Singh (P. W. 4) did so. The train then started but some persons from the crowd pelted stones in the engine which resulted in the breaking of the glass. The Assistant Driver Som Prakash (P. W. 6) also got injury due to throwing of stones. The train then had to be stopped again. The constables then arrested three persons on the spot who are the appellants. According to the prosecution, these were the persons who were actually thowing stones, Sri Krishna Singh also got injury on his forehead. The occurrence took place at 1 p. m. The first information report was lodged by Sri Krishna Singh at G. R. P. Etawah on the 18th of July, 1970 at 7.55 p. m. A case Under Section 127 Railways Act was registered against the appellants. S. I. Muktanath Singh (P. W. 7) made investigation of the case and after completing the investigation submitted the charge sheet. The appellants were then duly tried.
3. The appellants denied the prosecution allegations.
4. In support of its case, the prosecution has examined Sri Krishna Singh (P. W. 4), V. N. Srivastava, Station Master (P. W. 3), Munna Lal (P. W. 5) and Som Prakash (P. W. 6) as witnesses of fact. Dr. A.N. Lakhautiya (P. W. 1) has proved the abrasion on the forehead of Sri Krishna Singh. The injuries of Som Prakash had not been proved by any medical evidence. From the evidence of these witnesses it has been fully established that such an incident took place at Balrai Station when the goods train had to be detained because of the crowd and then some persons among the crowd started pelting stones when the goods train started moving.
5. The point to be decided is whether the prosecution has succeeded in proving beyond all reasonable doubts that the appellants were the persons who actually threw stones causing injuries to Som Prakash and resulting in the breaking of the glass. Sri Krishna Singh (P. W. 4) has stated the prosecution case. His is the solitary evidence showing that the appellants were the persons who were actually throwing stones. In the first information report he has stated that the miscreants could be apprehended with the help of Munnalal son of Dwarka Pd. Sharma Switchman and Moolchand whose name and address too had been given. It is also stated that the driver too could identify the accused persons, The driver has not been examined. Only Asstt. Driver Som Prakash (P. W. 6) has been examined. He has clearly stated that he did not see the persons actually throwing stones as he had received injury in the eye and it was not possible for him to identify those persons. The Station Master V. N. Srivastava (P. W.3) also stated that he had seen the stones being thrown but he did not see who had actually thrown the stones. Munnalal (P. W. 5) had first stated that he did not see the accused persons throwing stones. In the next breath he stated that he saw stones in the hands of one of the accused persons who was carrying stones even when he was in police custody. He was not asked to point out as to who was that person who actually had stones in his hand. His evidence, therefore, cannot be of much avail to the prosecution. It is significant that Sri Krishna Singh has stated that be did not know Munnalal or Mool Chand from before and that he had not even noted their names and addresses, but was only orally told about the same. It is surprising that he could remember their names and addresses when he lodged the first information report about seven hours after the occurrence. He stated that he had apprehended the accused persons with the help of Munnalal and Mool Chand but Munnalal did not make any such statement that he had helped the police in apprehending the accused persons. In such a crowd the possibility is not ruled out that some persons might have been arrested on the basis of mere suspicion. Under the circumstances of this case, I do not think that it is safe to base conviction of the appellants on the solitary testimony of the police constable Sri Krishna Singh (P. W. 4). The appellants are, therefore, entitled to be given the benefit of doubt.
In the result both the appeals are allowed and the conviction and sentences of the appellants Atar Singh, Mahesh Chandra and Udaibir Singh are set aside. They are acquitted of the offences with which they were charged. The appellants are on bail. They need not surrender to their bail bonds which are hereby discharged.