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PETITIONER: SATNAM SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       17/12/1999

BENCH: G.B.  PATTANAIK, M.B.Shah,

JUDGMENT:

     PATTANAIK.J.

     The  appellant,  a  truck driver was  convicted  under Section  302 IPC and was sentenced to imprisonment for  life by the learned Additional Sessions Judge, Sri Ganganagar in

     Sessions  Case  No.  33 of 1994.  On appeal, the  said conviction and sentence has been upheld by the High Court of Rajasthan.   The present appeal is directed against the said conviction and sentence.

     The prosecution case in nutshell is that on 26.8.92 at 10.55 p.m., deceased Munir Khan was going on his scooter and the appellant who was the truck driver, intentionally dashed against  him and crushed him under the truck, as a result of which,  said  Munir  Khan  died.  Initially,  a  case  under Section  304A IPC had been registered but later on,  charge- sheet  was filed under Section 302 IPC and the appellant was convicted  under  Section 302 IPC, as already  stated.   PW4 gave  a report at Suratgarh Police Station, Exh.P4 at  11.15 p.m.,  which  was treated as F.I.R.  and the police  started investigation.   On  the  basis of the said  F.I.R.,  PW  1O registered a case under Section 304A IPC.  The investigation was then handed over to PW15, who rushed to hospital and

     learnt  that the injured had died and, therefore,  the case  was converted to one under Sec.302 IPC.  PWs 5,6 and 8 are  supposed  to  be the eye witnesses to  the  occurrence. According  to  the  prosecution case, the accused  had  some dispute with one Mohan Singh and in a panchayat held, it was settled  that Mohan Singh will pay some compensation to  the accused  and  victim Munir Khan guaranteed for the  payment, but as no money was paid and the guarantor did not discharge his  obligation, the accused took the extreme step of taking away  his life.  Of the three eye witnesses, examined by the prosecution,  the  trial judge disbelieved PWs 6 and  8  but relied  upon  the evidence of PW5 and the motive as  already stated,  and  came  to  the   conclusion  that  the  accused committed  murder of the deceased by crushing him under  his truck.   Though the prosecution also relied upon the  extra- judicial confession alleged to have been made by the accused to  PW3  but the learned Sessions Judge as well as the  High Court did not rely upon the same and excluded the so-called

     extra-judicial   confession   from   the  purview   of consideration.   ’The High Court apart from relying upon PW5

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also  relied upon PWs 6 and 8 in arriving at the  conclusion that the case is one of murder.

     Mr.   Sushil  Kumar,  learned senior counsel  for  the appellant contended before us that the evidence of the three eye-witnesses PWs 5, 6 and 8 could not have been relied upon in  view  of several material omissions in  their  statement recorded under Section 161 Cr.P.C.  and the courts committed error in relying upon the same.  The learned counsel further contended  that even if the evidence of PW5 is relied  upon, who  saw  the  accused getting- down ..from the  trucks  and running  away from the place of occurrence, then at the most the offence can be said to be one under Section 304A and not under  Sec.302 inasmuch as it is- difficult to hold that the accused  appellant, intentionally crushed the deceased under his truck.

     Mr.   U.R.Lalit, learned senior counsel, appearing for the informant and Mr.  S.K Jain, appearing for the State, on the  other band contended that the High Court rightly relied upon the evidence of PWs 6 and 8, who categorically indicate that the accused was waiting for the deceased to come by the road  and  then  as soon as he saw the  deceased  coming  on scooter,  the accused crushed him under his speeding,  truck and,  therefore, the offence is one of murder and conviction under Section 302 is unassailable.  According to Mr.  Lalit, the motive having been.  established namely the deceased was the  guarantor and yet could not make the necessary  payment to the accused and the accused having a grudge on that score and  the  circumstances under which the truck ran  over  the scooter,  clearly  establishes  the fact  that  the  accused intentionally  killed  the deceased and it is not a case  of rash and negligent driving.

     From  the  autopsy  report  and the  evidence  of  the doctor, it has been established beyond reasonable doubt that the  deceased  while  was moving on his scooter,  the  truck No.RSC  -1313  dashed  against him and run over  him,  as  a result  of which the deceased died and as such the death  is homicidal  in  nature, in fact the conclusion of the  Forums below that the deceased met a homicidal death .lias not been assailed  in  this  Court.   The F.I.R.was  lodged  by  PW4, immediately  after  the  occuirence  and it  gives  a  vivid account  as  to how the scooter of the deceased  came  under Truck  No.  RSC-1313, which was coming at a high speed.  The truck  belongs  to  the accused is established  through  the prosecution evidence.  The evidence of PW5 further indicates that  he saw accused getting down from the truck and running away  from the place of occurrence after the accident.   The fact  that  the truck belongs to the accused read  with  the evidence  ofPW5  that he saw the accused, getting down  from the  truck  and running away after the accident  establishes the fact that at the

     relevant  point  of time, the accused was driving  the truck which dashed against the scooter on which deceased was going.   The crucial question that arises for  consideration however is whether the materials produced by the prosecution establishes  the fact that the accused intentionally  dashed against  the  scooter of the deceased and crushed  over  the deceased at the relevant point of time.  It is to be noticed that  thorgh  PW4 lodged the F.I.R., immediately  after  the occurrence but the names of the three eye-witnesses PWs 5, 6 and 8 had not been mentioned therein.  But that would not by itself  impeach the Credibility of the three eye  witnesses.

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The question whether the accused dashed against the deceased intentionally  to  cause  his death would  depend  upon  the evidence  of  the aforesaid three witnesses PWs 5, 6 and  8. So  far e- The informant PW4 is concerned, though  according to  his evidence, he was at a distance of 30 pa as from  the truck when the truck hit the scooter and he knew the accused Satnam Singh since long years and there was huge electric

     light  on  the  place of incident, yet  he  could  not identify  Satnam Singh, dri\ing the trucker stepping down 1} om  the  truck  and  running  away.   PW5  also  knows  the: deceased  as  well  as  the accused  and  according  to  his evidence,  while he was going on foot towards his house from railway  station,  the incident occurred.  He saw a  scooter being  dashed  by  a truck from behind and went  ahead.   He could  lurther see Satnam Singh stepping down from the truck and  running  away  toward;    colony.   Mr.   Sashil  Kumar contended before ustliat no reliance should be placed on his testimony  as  his  statement under Sec  .161  Cr.P.C.   was recorded  after three days of the occurrence and he had  not informed  about  the  occurrence  to any  person,  lie  also referred  to  several  omissions in his  statement  recorded under Sec.  161 but on going through those omissions, we are unable  to  persuade  ourselves  to  discard  the  testimony altogether.   But even if we rely on the statement of  this. witness;   the said evidence would not establish the offence of murder under Sec.302 IPC and at

     the  most  the  offence committed would be  one  under Sec.304A  IPC.  So far as the evidence of PW6 is  concerned, he  is supposed to have been present at the betel leaf  shop and  while taking the betel leaf, he was going on the  road, the  truck  which  was parked and accused Satnam  Singh  was standing  near  the  truck;  was waiting  and  watching  for somebody  and  according  to  his evidence as  soon  as  the deceased  Munir Khan carne on a scooter, Satnam started  his truck, chased the scooter and drove the truck at high speed, and  hit  the  scooter of Munir Khan.  If this  evidence  is accepted,  then  it must be held that the accused  committed the  offence of murder.  But the question for  consideration is  whether  the  statement of this witness can  at  all  be relied  upon.  From the cross-examination of this witness it appears  that  in his earlier statement recorded under  Sec. 161  Cr.P.C.,  which  is .  Exhibit D-3, he had  not.   even indicated that he had seen the occurrence.  ti has also been elicited  that  he did not inform any person that the  truck was being driven by Satnam

     Singh  by  which  accident had occurred.   He  offered explanation  that when he disclosed this fact to his brother on  his way to the hospital, his brother prevailed upon  him not to indulge in the dispute and it is on that score he had not  disclosed  it to any other person.  But before  meeting his  brother when he met PW4 at the place of accident,  even then  he had not intimated PW4 that the accused was  driving the vehicle.  No reason could be indicated as to why PW4 was not  intimated by PW6 that it is the accused who was driving the vehicle, even if the details might not have been stated. In his earlier statement, even if the had not stated that he met  his  brother  at some distance away from the  place  of occurrence  and the fact that his brother forbade him not to indulge in the dispute, even he had gone to the hospital and there  also he had not disclosed the incident to any  person in the hospital nor informed the name of Satnam Singh.  This being  the  fact situation and the witness concerned  having

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made  such  material  omissions from his  earlier  statement recorded under

     Sec.   161  Cr.P.C., it is difficult to rely upon  the testimony  of  this witness for the purpose of coining to  a conclusion that the accused was waiting by parking his truck for  the  arrival of the deceased and as soon as he saw  the deceased  coming  on  the .scooter, then  his  truck  dashed against the deceased.  To the same effect is the evidence of PW8,  who was with PW6 and after taking betel leaf was going on  the road.  Both PWs 6 and 8 were examined by the  police after  three  days  even though they were available  in  the hospital  when  the  police  had gone earlier  on  the  next morning  on 27.8.92 when the site plan was being prepared by the  police  as would appear from the evidence of  PW4.   No reasonable   explanation   is  coming    forth,   from   the Investigating  Officer, as to why :  the two vital witnesses were  not  examined  for  three days.   Then  again  if  the cross-examination  of  PWS is scrutinized, it  would  appear that  he a.lso bad not informed the name of Satnam Singh  as the person driving the truck, either to Pradip Bishnoi or to any other person.  According to his evidence in Court he did mention  the name of the accused driver but in his statement under  Exh.   P5,  recorded by the police  under  Sec.   161 Cr.P.C.  the same does not tmd place.  He admits that he had not  disclosed this fact to any person in the hospital  that Satnam  Singh was driving the truck.  He also admits that he did  not disclose any information to the police even on  the next  day.   On  going  through the evidence  of  these  two witnesses,  we  have no hesitation to hold that the  learned Sessions Judge rightly did not rely upon PWs 6 and 8 and the High  Court  erroneously  ignored  the  infirmities  in  the evidence  of  these  two  witnesses.   In  our  opinion,  no reliance can be placed on the evidence of the a foresaid two witnesses.  If we ignore the evidence of PWs6 and 8 from the consideration,  then on the evidence ofPW5, it is  difficult to  hold that a case of murder by intentionally driving  the vehicle  at a high speed and then crusing over the  deceased by  the  truck  can  be said to have been  made  out  beyond reasonable  doubt.  In the aforesaid premises, we are of the considered  opinion  that  the  prosecution  has  failed  to establish   the   offence  under   Section  302  IPC.    We, accordingly, set aside the conviction of the appellant under Sec.  302 IPC and the sentence passed thereunder and convict him  under  Section  304A IPC and sentence  him  to  undergo imprisonment  for  a term of two years.  Since  the  accused appellant  is in custody ’ever since his arrest in 1992, the accused  appellant be set at liberty forthwith, unless he is required in any other case.  Criminal appeal is allowed.