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PETITIONER: MAHIPAL (A) MAHAVEER SINGH

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT:       08/01/1998

BENCH: G.T. NANAVATI, S.S.M. QUARDRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      This appeal is directed against the judgement and order passed by  the Rajasthan  High Court  in D.B.Crl. Appeal No. 27/29. The  High Court  reversed the  order of acquittal and convicted the  appellant for  the offence  punishable  under Section 302 IPC.      Guru Nam  Singh (P.W.17), Jeet Singh (the deceased) and the appellant  left Calcutta  in a truck. Guru Nam Singh and Jeet Singh  were the  drivers of the truck and the appellant was the  Khalasi. Upto Indore the said vehicle was driven by Jeet Singh.  At Vijay Nagar they took food in a hotel. While proceeding ahead  Jeet Singh  slept in  the cabin  which was behind the  cabin of  the driver.  The prosecution  case was that the  truck then passed Nasirabad check post and reached Dundu at  about 4.45  a.m. Guru  Nam Singh stopped the truck there, told  the appellant  to look  after it  and  went  to nearby hotel for taking tea. He also sent one cup of tea for the appellant.  The appellant  after taking  tea went to the hotel where  Guru Nam  Singh was  sitting and  returned  the tumbler. Guru  Nam Singh  again told   him  to attend to the vehicle and  continued to  sit in the hotel after placing an order for  some articles  of food.  Within a short time Guru Nam Singh  was informed that near his vehicle one driver was seen lifting  another driver  lying on  the road.  Guru  Nam Singh went  near the truck and saw that Jeet Singh was lying on the  road and the appellant was sitting with Jeet Singh’s head in  his lap.  Guru Nam  Singh asked the appellant as to what had  happened and thereupon the appellant told him that Jeet Singh  had fallen  down from the truck and was then hit by a  passing vehicle. On the basis of this information Guru Nam Singh  went to  the Police  Station and  lodged a report that an  accident had  taken place.  After  registering  the offence the  A.S.I Banwari Lal reached the place of offence. While examining  the place closely he noticed that there was a trial  of blood  up to the truck. He also noticed blood in the cabin.  He also  felt that the wound on the neck of Jeet Singh was  not likely to have been caused by an accident but was probably  caused by  a sharp  edged weapon.  On  further investigation he  was  of  the  view  that  Jeet  Singh  was

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murdered. At  about 6.00 p.m. he arrested the appellant. The appellant was then tried for the murder of Jeet Singh.      The prosecution  had   examined P.W.17  Guru Nam Singh, P.W.1, Hazari  Lal, P.W.2,   Ram  Singh and PW.3, Narayan to prove the  guilt of the appellant. P.W.3 did not support the prosecution and he was declared a hostile witness. The trial court found  the evidence  of P.W.17  inconsistent with  the evidence of  P.Ws. 1  and 2 as regards who informed Guru Nam Singh about  the  incident  and,  therfore,  held  that  his evidence could  not be  relied upon.  It also  held that the conduct of  P.W. 17  was not  natural as  he  had  not  made further enquiries from the person who informed him as to how the incident had taken place and that also made his evidence doubtful. His  evidence was  also doubted on the ground that in the  F.I.R. he  had not  stated that  some currency notes were found  missing from  the pocket of deceased Jeet Singh. The trial court also held that P.W. 17 stood contradicted by the evidence of P.W.1, Ratan Lal who had produced the record maintained at the Check Post to show that there was no entry regarding the  truck having  passed Nasirabad Check Post. It also  held   that  find  of  blood  in  the  cabin  was  not inconsistent with  some one  else committing  the murder  of Jeet Singh  in the  truck and  then throwing his body on the road. The trial court did not believe the evidence regarding recovery of  blood stained  knife at  the  instance  of  the appellant on  the ground that is was lying in water for more than 24  hours. It  then held  that the circumstances relied upon by  the prosecution  were not  sufficient to  prove its case and, therfore, acquitted the appellant.      The High  Court considered  each of  these reasons  and came to  the conclusion  that the  sessions  court  did  not correctly  appreciate   the  evidence  and,  therefore,  the inferences   drawn by it were wrong. It held that it was not proper for  the trial  court to reject the evidence of PW-17 on the  ground that  in the  complaint he  had not mentioned that currency notes, which were in the pocket of Jeet Singh, were missing.  It was  a minor  detail and moreover when the complaint was  lodged, PW-17  had no  reaon to  suspect  his khalasi and  disbelieve his  version  that  Jeet  Singh  had fallen from  their truck  and was  run  over  by  a  passing vehicle.   The High  Court has also rightly pointed out that the evidence  of PW-17 is not inconsistent with the evidence of PWs-1  and 2  except  with  respect  to  the  person  who informed PW-17.  Whether that person was driver as stated by PW-17 or  a hotelwala  as deposed  by PWs  1 and 2 was of no significance in  this case.  The evidence of these witnesses clearly establishes  that at  the relevant  time  PW-17  was sitting in  a hotel  after taking  tea  and  that  on  being informed about  the incident  he returned  to his  truck and enquired from  the appellant as to what had happened. Unless he was so told by the appellant, PW-17 could not have stated what we  find in  the complaint filed by him. The conduct of PW-17 in  not trying  to get  further information  from  the informer should  not have been recorded as unnatural and was certainly not a good ground to reject his evidence. On being told as  to what had happened, he immediately left the hotel and returned to the place where his truck was parked to find out what  had happend. Thus none of the reasons given by the trial court  was found  sustainable by the High Court and in our opinion rightly.      Once we  belive PW-17  that  he  was  informed  by  the appellant that Jeet Singh had fallen down from the truck and was then hit by a passing vehicle, it  has to be held that a deliberate attempt  was made  by him  to mislead everyone as regards  circumstances   in  which   Jeet  Singh  died.  The

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prosecution evidence  also clearly  established  that  there were only three persons in the truck namely, PW-17, deceased Jeet Singh  and the  appellant, when it left Vijay Nagar. It is an  undisputed fact that Jeet Singh had slept in the rear cabin after  the truck  had left  Vijay Nagar.  The  learned counsel for  the appellant  tried to  challenge the  finding recorded by the High Court that the truck had in fact passed through Nasirabad check post but in view of the admission by the accused  himself in  his  statement  under  Section  313 Cr.P.C. it  was a  futile attempt.  The learned counsel also urged that  after the truck had left Nasirabad the appellant had also slept in the rear cabin on the upper berth and that he really  did not  know as to  how Jeet Singh was murdered. The evidence  of PW-17  is that  after they left Vijay Nagar the appellant  was sitting on the Khalasi’s seat and when he went to  hotel at  Dundu he  had instructed the appellant to look after  the truck. It is unbelievable that if really the appellant was  also sleeping  when the  truck reached Dundu, PW-17  would   have  gone  to  a  hotel  leaving  the  truck unattended. The  version given  by PW-17, therefore, appears to be  more probable  and natural than the explanation given by the appellant in this behalf.      It was  also urged  by  the  learned  counsel  for  the appellant that  the possibility  of someone else causing the death of  Jeet Singh has not been ruled out in this case and therefore, the  High Court committed error in convicting the appellant. The  evidence of  PW-17 clearly  established  the circumstance that   when  he left  the truck  and went  to a hotel at Dundu only Jeet Singh and the appellant were in the truck. At  that time  Jeet Singh  was sleeping  on the lower berth of  the rear  cabin and the appellant was sitting on a seat in  the front  cabin. The other circumstance which also stands established  is that  the death  of Jeet  Singh  took place within a short time thereafter. When PW-17 returned to the truck  he and  also other  witnesses found the appellant sitting on  the road  near the  body of  Jeet Singh and that completely falsifies  the appellant’s  explanation that   he was all  the while sleeping and woke up only when the police came on  the spot.  The  prosecution  has  also  established beyond any  doubt that the death of Jeet Singh had not taken place as a result of a fall from the truck or because he was hit by a passing vehicle but because of an injury caused  by a sharp  edged weapon. The circumstance that he gave a false version as  regards the  manner in  which Jeet  Singh    had received the  injury and  h ad  died also stands established beyond any  doubt. As  stated earlier blood stains were also found inside  the cabin  of the truck. A knife was recovered on the  information given  by the appellant and it was found stained with  human blood.  The contention  of  the  learned counsel for the appellant that as the knife was found from a nearby water  pit after  about 24 hours, no blood would have remained on it cannot be accepted as the evidence shows that the knife was closed before it was thrown in that water pit.      Having gone  through the  judgment of  both the  courts below and  the evidence  we find  that the  High  Court  has correctly appreciated  the evidence  and dealt  with all the reasons  given   by  the  trial  court  for  acquitting  the appellant. The High Court has rightly found those reasons as improper and  not sustainable.  It was, therefore, justified in interfering  with the  order of  acquittal and convicting the appellant  for the  offence punishable under Section 302 IPC.      As we  do no  find any  substance in  this appeal it is dismissed. The  appellant was  released on  bail during  the pendency of the appeal. Therefore, his bail is cancelled and

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he is  directed to  surrender to  custody to  serve out  the remaining part of the sentence.