Chhinder Singh vs State of Rajasthan

Shyam Sunder Byas, J.—This appeal is directed against the judgment of the learned Additional Sessions Judge (2), Hanumangarh dated March 30, 1981, by which accused Chhinder Singh was convicted u/s 302, IPC and was sentenced to imprisonment for life with a fine of Rs. 3000/-, in default of the payment of fine to further undergo three years'' rigorous imprisonment.

Briefly stated, the prosecution case is that at about 3.00 a.m. on January 1, 1980, PW 2 Major Singh appeared at Police Station, Hanumangarh Junction and verbally lodged a report, which was reduced into writing by the Station House Officer. It is Ex. P 1. It was stated therein that at about 8.00 p.m on December 31, 1979, his uncle Sardara Singh accompanied with PW 1 Harphool Singh was returning to his house situate in Chak Jahano District Ganganagar. When both of them reached near the primary school of the village, one tractor ESCORT came from behind. Accused Chhinder Singh was driving it. His brother Ginder Singh was sitting on one side of the tractor while Najar Singh was sitting on the other side of the tractor. Since there was family dispute between Sardara Singh and accused Chhinder Singh and his brother Ginder Singh, accused Chhinder Singh, in order to kill Sardara Singh, drove the tractor towards him. The tractor was so driven by the accused Chhinder Singh that it dashed against Sardara Singh. As a result, Sardara Singh fell down. Accused Chhinder Singh intentionally drove the tractor on the body of Sardara Singh. Sardara Singh was, thus, crushed by the tractor. Sardara Singh passed away on the spot. PW 1 Harphool Singh rushed towards the house and narrated the story to PW 2 Major Singh, PW 8 Mewa Singh and other members of the family. Major Singh managed to get some tractor and went on it to Police Station, Hanumangarh, where he lodged the report. It was also stated in Ex. P 1 that Ginder Singh had exhorted accused Chhinder Singh to drive the tractor on Sardara Singh. The Police registered a case u/s 302/34, [PC against the three persons, viz., the appellant Chhinder Singh, his brother Ginder Singh and Najar Singh the owner of the tractor. The SHO P.P. Meena immediately left for the place of the occurrence. At about 9.00 a.m. on January 1, 1980, he inspected the site and prepared the site plan. He also prepared the inquest report of the victim''s dead body. The blood-stained clothes of the deceased were seized and sealed. The postmortem examination report of the victim''s dead body was conducted on the spot at about 10.30 a.m. on January 1, 1980 by PW 6 Dr. Khatri the then Medical Officer Incharge, Government Dispensary, Dablirathan. He found the following injuries on the victim''s dead body:

Internal:

(1) A lacerated wound about 7x 1-1/2 cm. sized, above left eye running from middle forehead vertically towards the corner of the left eye. Blood clot was present;

(2) Right ear middle lobe torn about 6 x 1/2 cm. (lacerated wound). Blood clot was present;

(3) Left ear upper two third lobe torn, lacerated about 6 x 1 cm., but not separated;

(4) Multiple bruises on chest and left forearm:

(a) Chest--multiple bruises of 3 x 2 cm, size (about) in zigzag pattern all over the chest.

(b) On left forearm:

(i) A bruise about 5x4 cm. size on vertal aspect about 8 cm. above left elbow;

(ii) A bruise 6x4 cm. sized, about 4 cm. below left elbow dorsal.

(5) An abrasion on left forearm, of size about 8x2 cm., 5 cm. above the left elbow;

(6) Four abrasions on left gluteal region:

(i) About 2 x 1/2 cm. sized, 3 cm. above left hip joint outward;

(ii) About 3 x 1/2 cm. sized, 4 cm. above left thip joint outwards;

(iii) About 3 x 1 cm. sized, 6 cm. above left hip joint inwards;

(iv) About 2-1/2 x 2-1/2 cm. sized, 4 cm. above left hip joint inwards;

(7) An abrasion of about 3 x 1-1/2 cm. sized on back of chest (left side) just below left scapula;

(8) Two abrasions of about 1 x 1-1/2 cm. sized on back of chest (left side) about 3 cm. below left scapula;

(9) 3 abrasions on left thigh:

(i) of about 5x3 cm. sized, original in shape on left thigh enter region on left side;

(ii) of about 3 x 1 cm. size outer region;

(iii) of about 7x5 cm. size outer region;

(10) Two abrasions one of about 5x4 cm, sized, about 3 cm. below left knee joint on dorsal surface; second of about 2 x 1 cm. sized about 5 cm. below left knee joint or dorsal surface;

(11) One abrasion of about 25 x 10 cm. size, about 7 cm. below left iliac spine;

(12) One abrasion of about 7 x 5 cm. size about 5 cm. below left iliac spine;

(13) post-mortem lividity present on right side of chest, back of chest and right side;

(14) Fracture of shaft of left humerus in the middle;

(15) Fracture of left femur, about 8 cm. above the left knee joint.

Interval:

(1) Fracture of shaft of left humerus, in the middle;

(2) Fracture of shaft of left femur, about 8 cm. left knee joint;

(3) Fracture of 1st. 3rd, 4th, 6th and 7th ribs on right side, in the right mid-clavicular line;

(4) Fracture of 1st, 2nd, 3rd and 4th ribs on left side, in the left mid-clavicular line.

In the opinion on Dr. Prasant Khatri, the death of Sardara Singh was due to shock because of brain haemorrhage in the occipital region and multiple injuries. The injuries were ante-mortem. The post-mortem examination report issued by him is Ex. P 9. The tractor was also seized and sealed. On the completion of the investigation, the police submitted a challan against the three persons, viz., Chhinder Singh, Ginder Singh and Najar Singh, in the Court of Munsif & Judicial Magistrate, Hanumangarh, who in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed a charge u/s 302. IPC against accused Chhinder Singh and u/s 302/34, IPC against Ginder Singh add Najar Singh. The accused persons refuted the charges and demanded the trial. They denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. In support of its case, the prosecution examined seven witnesses and filed some documents in defence, the accused examined one Witness. On the conclusion of the trial, the learned Additional Sessions Judge found no incrimi-nating material as against accused Ginder Singh and Najar Singh. According to him, the prosecution story of accused Ginder Singh''s exhorting or inciting his brother Chhinder Singh to drive the tractor on the deceased-victim was totally false and fabricated. He further held that though the tractor belonged to Najar Singh, that alone was not sufficient to connect him with the crime. As a result accused Ginder Singh and Najar Singh were acquitted of the offence u/s 302/34, IPC. The charge u/s 302, IPC was held duly proved against accused Chhinder Singh. Accused as mentioned at the very out-set. Aggrieved against his conviction and hence, accused Chhinder Singh has come-up in appeal.

We have heard Mr. M.L. Garg learned counsel for the appellant and Dr. S.S. Bhandawat the learned Public Prosecutor assisted by Mr. H.S. Sandhu learned counsel for the complainant.

Before we proceed further, it would be useful to briefly notice the relationship of the deceased, the appellant and the prosecution witnesses Major Singh (PW 2) Mewasingh (PW3)and Harphool Singh (PW1). The deceased Sardara Singh had two brothers-Mukansirigh and Jelasingh. Accused Chhindar Singh is the son of Jelasingh. PW 2 Major Singh and PW 3 Mewa Singh are the sons of Mukan Singh. The sisters of PW 1 Harphool Singh are married to PW 2 Major Singh and PW 3 Mewasingh. The parties are, thus, closely related inter se. It is alleged that the appellant and the members of his family were unhappy with the deceased Sardara Singh. The reasons stated is that Sardara Singh had no issue and he made a Will of all his assets in favour of Major Singh (PW 2). Mewa Singh (PW 3) and their brother Sewak Singh. The appellant, therefore, harboured an ill will and harted against Sardara Singh, It was, thus, the ill-will and hatred which pushed him to kill Sardara Singh. While scrutinizing the evidence of the witnesses, this back-ground will have to be kept in view.

Mr. Garg learned counsel appearing for the appellant did not challenge the opinion of Dr. Khatri (PW 6) about the cause of death of the deceased-victims Sardara Singh. We have carefully gone through the testimony of Dr. Khatri and find no reasons to distrust so far it relates to the cause of the victim''s death. Sardara Singh was run-over, rolled and crushed by the tractor. His death was thus not natural.

In assailing the conviction, it was strenuously contended by Mr. Garg that a case of simple accident has been intentionally and mischievously converted into that u/s 302, IPC. The deceased-victim Sardara Singh was in an intoxicated state when the accident took place. The circumstances show that while he was on the way, he was staggering and could not control his movements. PW 1 Harphool Singh is the real brother-in-law of PW 2 Major Singh and PW 3 Mewa Singh. The deceased victim Sardara Singh had executed a Will in favour of Major Sing and Mewa Singh. The appellant and the members of his family'' had entered into litigation with them in connection with the execution of this Will. It was the skill of Major Singh and Mewa Singh that they converted a case of simple accident into that of intentionally killing with the active help of the Investigating Agency. It was argued that the tractor did not belong to the appellant. It belonged to Najar Singh, who was absolutely unconnected person. It is difficult to imagine that he would allow Chhinder Singh to use his tractor in killing Sardara Singh. PW 1 Harphool Singh is not a witness of absolute truth. He has been disbelieved by the trial Judge as against the acquitted accused Ginder Singh and Major Singh. The story stated by him that Ginder Singh exhorted the appellant to drive the tractor found false, over the deceased-victim has been found false. Thus the witness has been, disbelieved on the major portion of the prosecution story. As such, absolute truth cannot be expected from him. It was also argued that in the information sent by the Investigating Officer to Dr. Khatri in connection with the post-mortem examination of the victim''s dead body the fact mentioned was that the death of Sardara Singh had taken place due to tractor accident. This fact has been accepted by Dr. Khatri (PW 6) in his statement. The testimony of Dr. Khatri shows that it was a case of sheer accident. Reliance in support of the contention was placed on State of Gujarat Vs. Haidarali Kalubhai,

It was, on the other hand, contended by Dr. Bhandawat that it was a case of deliberate killing where the victim was rolled over and crushed by the tractor. It was argued that according to Dr. Khatri (PW 6), the injuries sustained by the deceased were not the result of a single crush but were the result of the movement of the tractor more than once on his body. Appellant Chhinder Singh was unhappy with the deceased-victim Sardar Singh because the latter had executed a Will in favor of Major Singh and Mewa Singh. Reliance in support of the contention was placed on Hanuman Bhat v. The State of Rajasthan 1979 Cri. L.R. 281. We have taken the respective submissions into consideration.

It would be useful to examine the contentions raised on behalf of the appellant, taking the testimony of Dr. Khatri (PW 6) to start with. In his cross-examination, Dr. Khatri stated at one place that the injuries found on the victim''s dead body were not the results of a single crush. When cross-examined further, he wavened and corrected his opinion by stating that if the >wheels of the tractor did not run in the same line, the injuries found on the victim''s dead body could be a result of a single crush. It would be useful to quote him in his own words:

The testimony of Dr. Khatri is, thus, of not such material help to the prosecution to show that it was not a case of single crush but of more than one crush. Had it been a case of more than one crush, intention to kill could then have been inferred. The testimony of Dr. Khatri (PW 6) does not permit us to raise such an inference.

PW 6 Dr Khatri stated that alcohol was found in the stomach of the deceased-victim Sardara Singh. He also stated that the deceased had taken the liquor between two to four hours before his death. It shows that the deceased-victim Sardara Singh had taken the liquor. PW 2 Major Singh, who is the real nephew of the deceased-victim Sardara Singh stated that Sardara Singh never took liquor throughout his life. But he stands completely falsified in view of the medical evidence discussed above.

Dr. Khatri (PW 6), in his cross-examination, further admitted that according to the information furnished to him by the police before postmortem examination, the death of the victim had taken place on account of tractor accident. In the post-mortem examination report Ex. P 9, this fact has been mentioned that the information furnished by the police was that the victim had died due to tractor accident.

We shall now take-up the testimony of PW 1 Harphool Singh. Needless to say that he is the only ocular witness of the occurrence. He stated that in the morning of day the of occurrence, Sardara Singh had gone to village Mooda to a see his relative Mala Singh. He was expected to return in the afternoon. When he did not return, his nephews Major Singh and Mewa Singh went to railway station, Dabir, expecting that Sarada Singh might come by the train. When both of them also did not return, he (witness) went on foot to bring Saradra Singh. He found Saradra Singh near the canal. Both then proceeded together to came to their village. When they reached near the primary school of their village, the tractor come from behind. Accused Chhinder Singh was driving it. Ginder Singh was sitting on one side and Najar Singh was sitting on the other side of the tractor. Ginder Singh told Chhinder Singh that the enemy (meaning Sardara Singh) was there in the site and that he should be killed by driving the tractor on him. The accused Chhinder Singh thus exhorted accelerated the speed of the tractor and dashed the tractor against Sardara Singh, who was there on the left margin on the way. Sardara Singh fell down. Accused Chhinder Singh then again drove the tractor on him and crushed him completely. The witness stated that he raised cries but none came for help. He then went to the house and narrated the incident to Major Singh, Mewa Singh and other members of the family.

There are several striking features in the testimony of this witness which persuade us that he is not a witness of absolute truth. He has been found false by the trial Judge in connection with the part of exhortation and incitement assigned to Ginder Singh, by him. In other words, the story of exhortation and incitement, as given by this witness, has been taken as blatent lie. It shows that the witness is in the habit of introducing false matters and that too on the major points. Ginder Singh could be involved only when some part was attributed to him. Since Chhinder Singh was driving the tractor, the witness devised a mischievous way to implicate Ginder Singh. He, therefore, fabricated the story of Ginder Singhi''s giving exhortation and instigation to accused Chhinder Singh to drive the tractor on Sardara Singh.

Though he is said to be a witness of the occurrence, and his signatures are thereon the First Information Report Ex. P 1, curiously enough he was not kept present when the site was inspected by the Investigating Officer and the site plan was prepared. In fact, nothing has been mentioned in Ex. P 2 and Ex. P 3 (site plan and site inspection note respectively) that this witness was with the deceased-victim Sardara Singh. No explanation has been coming for this lapse on the part of the Investigating Agency. Though the signatures of this witness appear on the FIR Ex. P 1, curiously enough, it was not lodged by him. He is a real brother-in-law of PW 2 Major Singh and PW 3 Mewa Singh, to whom his sisters have been married. As such, absolute truth cannot be expected from him.

According to Dr. Khatri (PW 6), alcohol was found in the stomach of the deceased-victim. It was 8.00 P.M. when the occurrence had taken place. The occurrence had taken place just a few yards away from the Abadi of the village and near the primary school. It is difficult to imagine that the accused would have a premonition that the deceased Sardara Singh would pass at about 8.00 P.M. on the way near the primary school so that tractor may be taken and he may be rolled over and crushed. More over, no person would do so at a place where he is likely to be easily seen and spotted. The tractor belonged to Najar Singh and not to the accused Chhinder Singh. We are unable to conceive that Najar Singh would allow Chhinder Singh to use his tractor in killing Sardara Singh. The accident had taken place not in a lonely place,

Taking all these factors into consideration, we are unable to accept the testimony of PW 1 Harphool Singh at the face value. The various circumstances pointed out above by us convincingly show that a case of accident, where the death has been caused by rash and negligent driving, has been naively and mischievously converted into that of murder. The, various facts alluded to above do not make out a case of any wilful or deliberate act on the appellant that he intentionally drove the tractor on, the deceased-victim in order to kill him. It appears to be a case where the appellant was driving the tractor rashly and negligently and caused the death by his aforesaid act of rash and negligent driving

We have carefully gone through the decision of this Court rendered in Hanuman Bhat''s case relied upon by the learned Public Prosecutor. The facts of that case were entirely different. The deceased was sitting on the Chabutari and the accused drove the truck on the Chabutari not by mistake but with intention. It was in those circumstances that the accused was held guilty u/s 302, IPC. Here, the facts are otherwise, as discussed above.

For the reasons mentioned above, we are unable to maintain the conviction of accused Chhinder Singh u/s 302, IPC. The offence made out against is that of causing death by rash and negligent act punishable u/s 304A, IPC.

In the result, the appeal of accused Chhinder Singh is partly allowed. His conviction and sentence u/s 302, IPC are set-aside. Instead, he is convicted u/s 304A, IPC and is sentenced to two years, rigorous imprisonment. He is in custody since January 5,1980. He has, thus, served out the whole term of his sentence. He will be therefore, forthwith set at liberty if not wanted in any other case.