Satnamsingh vs State of Rajasthan

P.C. Jain, J.—This appeal is directed against the judgment dated 15-3-1995 of the learned Addl. Sessions Judge No. 2, Sri Ganganagar whereby the accused-appellant Satnamsingh was held guilty of the offence u/s 302, IPC and was sentenced to imprisonment for life together with a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one month.

The prosecution case, as unfolded at the trial, may be stated as follows. On 26-8-1992 at about 10.55 P.M. deceased Munir Khan was coming from the side of the Police Station and was going to his house on his Priya Scooter. He was proceeding on the extreme left of the Road. When he reached near Anand Chhabra''s Clinic on the Suratgarh-Bikaner Road, the accused who was waiting for Munir Khan near the Office of the Public Works Department Majdoor Union, sat on his Truck No. RSC 1313 and drove it behind Shri Munir Khan at a very fast speed. He wanted to intentionally crush Munir Khan under the truck. With that object, he drove the truck and came to the left of Munir Khan and hit him with great force from behind. He swerved the truck in such a way that Munir Khan was trapped under the right wheel. Munir Khan was ran over and crushed by the above Vehicle. After running over Munir Khan, the vehicle of the accused hit the stone slabs marked ''BG'' as shown in the Site Plan Ex.P.5. Therefrom the accused took a right turn and after crossing the road hit the electricity pole ''E''. The electricity Pole was damaged. The truck then stopped. The accused immediately alighted from the truck and fled towards CSF Farm. This occurrence was witnessed by P.W. 4 Pradeep Kumar who happened to pass through the above road while going to his house from the Market.

After the above incident, many persons including P.W. 8 Saleem, P.W. 6 Riazuddin and P.W. 5 Mangilal assembled there. P.W. 1 Pradeep Kumar saw a jeep coming towards that site. He intercepted the same and with the help of other persons lifted Munir Khan in seriously injured condition and rushed to the Govt. Hospital which was not far away from that place. After reaching the Hospital, the Doctor On Duty examined Munir Khan and declared him dead. P.W. 4 Pradeep Kumar then went to the Police Station, Suratgarh and lodged a written FIR Ex.P4 at 11.15 P.M.

On receipt of this report, P.W. 10 A.S.I. Ramsingh registered a case u/s 304A, IPC and handed over the same for investigation to P.W. 15 Om Prakash. Circle Inspector. P.W. 15 Om Prakash reached the Hospital and from there came to the place of the occurrence. He deputed Police Constables for guarding the site. Nothing more could be done on that night.

It is alleged that the accused was waiting for Munir Khan who usually goes to his house from that route. P.W. 8 Saleem and P.W. 6 Riazuddin were in the vicinity of the place of the occurrence because they came to take betel from the Betel Vendor near Pavan Misthan Bhandar. They observed that the accused was standing near the above truck and his movements betrayed that he was anxiously waiting for somebody. As soon as he saw Munir Khan coming on his scooter, he occupied the driver''s seat, started the truck and hit Munir Khan from behind. P.W. 5 Mangilal happened to pass through that road while going to his house. When the truck stopped he was very near to the truck and recognised the accused getting out of the vehicle and fleeing towards the farm.

On 27-8-1992 at about 7.300 A.M., P.W. 15 Om Prakash went to the site and got the photographs Ex.Ps. 7, 8, 21 to 25 taken by the Photographer. He seized the above truck as well as the damaged scooter on which Munir Khan was proceeding. He prepared the Site Plan Ex.P.5 in the presence of P.W. 1 Pradeep Kumar, Mukanaram and Rajendrasingh. He also prepared the Site. Inspection Memo Ex. P.5-A. In Ex.P.-5A he has shown the Suratgarh-Bikaner Road by No. '' 1''. The Kutchha road has been shown on both the sides of the above main road by Nos. ''2'' and ''3''. On the western side of the road, shops have been shown. At place ''A'', the accused hit Munir Khan by bringing his truck on the left of Munir Khan. He found lot of blood at place "A". According to his Site Inspection Memo, the scooter was proceeding on their correct side of the road. He has shown the movements of the truck by arrows. He also found marks of tyres of the truck at place ''B''. Stone slabs and the bricks were damaged by the wheel of the truck. The scooter of Munir Khan was lying at place "C". The electricity pole "E" was substantially damaged when the truck hit it. He found that the road lights were op. The Truck was found standing at Place ''D''. The diesel tank of the truck was damaged and the diesel spilled all over the road. There was a hole in the diesel tank. It appeared that the scooter stand got stuck beneath the truck and it pierced the tank. The width of the road was 20 feet. No marks showing that the accused applied brake of the Truck were found.

After a thorough examination of the site, the Investigating Officer was convinced that it was not a mere accident. It appeared that the accused intentionally crushed Munir Khan by driving his Truck to the left of the Scooter in such a way that Munir Khan was trapped under the right wheel of the Truck. He did not stop the Truck and the pelvic bone of Munir Khan was crushed. He further concluded that the accused obviously abandoned the vehicle because the diesel drained off the tank on account of the hole caused by the stand on the scooter. He, therefore, converted the offence from Section 304A, IPC to Section 302, IPC.

The above incident created law and order problem in the Town and therefore, the Investigating Officer had to take necessary steps for maintaining law and order till the dead body of Munir Khan was buried. This took the whole day. The material witnesses viz., P.W. 4 Pradeep Kumar, P.W. 5 Mangilal, P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem were examined on 28-8-1992. The postmortem examination of the dead body of Munir Khan was got conducted from P.W. 14 Dr. Om Prakash on 27-8-1992 at 9.30 A.M. The postmortem report is Ex. P.20.

The only important point to be mentioned regarding the antemortem injuries found on the person of Munir Khan is that according to P.W. 14 Dr. Om Prakash, the pelvic bone was crushed as is revealed by injuries Nos. 1 and 2. Since the pelvic bone is the strongest bone in the body, he was of the opinion that such injuries could be caused if the deceased was run over by a heavy vehicle. It was also found as a result of investigation that the accused was highly aggrieved against Munir Khan because Munir Khan and other persons arbitrated in a dispute which the accused had with Mohansingh of Agra. It is alleged as a result of the above arbitration, Munir Khan undertook to make payment if Mohansingh failed to make the same to the accused. Mohansingh did not pay the amount. The accused, therefore, demanded the money from Munir Khan but the latter disowned his liability on the ground that he only offered his good offices to reconcile the matter but he never undertook to pay on behalf of said Mohansingh. The accused is alleged to have threatened Munir Khan. It is on account of this motive that the accused committed the murder of Munir Khan by crushing him under his truck.

Ater usual investigation, a challan was filed against the accused-appellant in the Court of the learned Additional Chief Judicial Magistrate, Suratgarh and ultimately, the accused was committed to the Court of the learned Addl. Sessions Judge, Hanumangarh Camp Suratgarh for trial.

The learned Addl. Sessions Judge framed the charge u/s 302, IPC against the accused but he pleaded not guilty to the charge and claimed to be tried. The prosecution examined as many as 15 witnesses in support of its case. The statement of the accused was recorded u/s 313, Cr.P.C. In his statement before the Court, the accused denied that Munir Khan ever participated in the reconciliation proceedings regarding the alleged dispute he had with Mohansingh. He further stated that at the time of accident, deceased was driving the scooter rashly and negligently and dashed against the right wheel of the truck. The Truck was swerved towards left but on account of the rash and negligent driving Munir Khan dashed his Scooter against the truck. He however, stated that he was not driving the truck but it was being driven by his brother Darshan. He has further alleged that the prosecution witnesses are all interested witnesses and related to Munir Khan. In his defence, he produced D. W. 1 Harbansh Lal, and his brother D. W. 2 Darshan. D. W. 1 Harbansh Lal denied to have any dispute with the accused regarding fish contract. D.W.2 Darshan had deposed about the above accident. His statement is that he was driving the Truck at that time and the accident occurred on account of rash and negligent driving of the Scooter by Munir Khan. It was a case where Munir Khan dashed against the Truck. He was not at fault.

The learned Additional Sessions Judge framed the following two points :

Whether the accused was the driver of Truck No. RSC 1313 at the time of accident?

Whether the accused intentionally hit Munir Khan with the object to commit his murder or was it was only an accident?

After considering the material evidence on record, the learned Addl. Sessions Judge held that it was accused Satnamsingh who was driving the Truck No. RSC 1313 at the time of accident. In this connection, the learned Addl. Sessions Judge observed that admittedly the accident occurred on that day; the Truck belonged to the accused; and that this fact was within the exclusive knowledge of the accused as to who was the Driver of the Truck at the relevant time and since the accused did not furnish any information in this regard, inference warranted by Section 106 of the Evidence Act was drawn against the accused. In this respect, the learned Addl. Sessions Judge also relied on the statement of P.W. 5 Mangilal. However, he rejected the testimony of P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem on the ground that both the witnesses gave verbatim statements Exs.D.3 and D-5 u/s 161, Cr.P.C. This is simply not possible because every witness will give a different version and the language and the style of narration would differ. He brushed aside the criticism levelled by the learned counsel for the accused that P.W. 5 Mangilal was a chance witness and he should not be believed on account of his dubious subsequent conduct. It was alleged that P.W. 5 Mangilal though present when P.W. 4 Pradeep Kumar lifted injured Munir Khan in the Jeep, did not disclose the name of the Driver. He also went to the Hospital. Thereafter, he went to his house. It was a conduct not compatible with that of a natural witness. The learned Addl. Sessions Judge then examined the circumstances '' under which this accident occurred and relying on the circumstantial evidence afforded by the site details concluded that it was not a mere accident but a well executed plan to commit the murder 6f Munir Khan. He, therefore, convicted and sentenced the accused as aforesaid.

We have heard learned counsel for the accused-appellant and the learned Special Public Prosecutor as also the Public Prosecutor appearing for the State.

The learned counsel appearing for the accused-appellant made a blistering attack on the prosecution evidence arid branded it as false, fabricated and unreliable. He contended that the learned Addl. Sessions Judge has committed a grave error in relying on the testimony of P.W. 5 Mangilal and also in drawing an inference against the accused by invoking the aid of the provisions of Section 106 of the Evidence Act that the accused was the Driver of the above Truck at the relevant time. The accused put up his case while cross-examining the prosecution witnesses by suggesting that the Truck was driven by his brother Darshan. The learned counsel, therefore, contended that the most crucial and vital question requiring determination in this case is as to who was the Driver of the above Truck at the relevant time.

In this connection, the learned counsel made a scathing attack on the truthfulness and reliability of the material prosecution witnesses viz. P.W. 5 Mangilal, P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem. It was contended that a perusal of the FIR which was lodged within twenty minutes of the accident shows that P.W. 4 Pradeep Kumar has not stated the name of any witness at the time of the accident. It is a very material omission which renders the testimony of P.W. 5 Mangilal and P.W. 8 Mohd. Saleem unreliable and false. P.W. 4 Pradeep Kumar has indicated the presence of several persons at the place of the occurrence including P.W. 5 Mangilal, P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem in his statement given before the Court. Had it been correct, he would have definitely mentioned their names in the FIR. The learned Addl. Sessions Judge correctly discarded the testimony of P.W. 8 Mohd. Saleem and P.W. 6 Riazuddin who were only chance witnesses and the prosecution has produced them only to strengthen their case.

It was further contended that if the testimony of P.W. 5 Mangilal is examined, it would be clear that this conduct immediately after the accident is abnormal and renders his testimony absolutely unreliable. If he had seen the accused driving the above vehicle, he would have told to other persons but he only went to the house of the deceased and informed Noor Mohd. The Prosecution has not produced Noor Mohd. in the witness box. Thereafter, it is alleged that he told about this incident to P.W. 9 Raja Mohd. son of the deceased when he reached Suratgarh from Jaipur. According to the statement of P.W. 15 Om Prakash, the whole town was tense and agog with suspense. P.W. 5 Mangilal still did not go to the police to inform about the identity of the Driver who drove the above vehicle on that day. The learned counsel led us through the statements of P.W. 5 Mangilal, P.W. 9 Raja Mohd. and other witnesses to emphasise the point that the conduct of this witness is highly improbable, unnatural and unworthy of belief. Learned counsel then referred to the statement of D.W. 2 Darshan who categorically stated that he was the Driver of the vehicle at the time of accident. He further stated that the accident occurred on account of rashness and negligence of Munir Khan who wanted to overtake the truck and in the process dashed against the right wheel of the Truck and was run over. Darshan tried his best to avoid the catastrophe but he failed because Munir Khan could not control his Scooter.

On the other hand, the learned Special Public Prosecutor, and the Public Prosecutor appearing for the State as also the learned counsel appearing for the complainant supported the judgment of the learned Addl. Sessions Judge.

Mr. D. S. Shishodia, the learned counsel appearing for the complainant has submitted that the learned Addl. Sessions Judge analytically examined the testimony of all the material witnesses and placed reliance on the testimony of P.W. 5 Mangilal after subjecting it to critical scrutiny applying the various checks available. He however differed with the learned Addl. Sessions Judge when he turned down the testimony of P.W. 8 Saleem and P.W. 6 Riazuddin. He submitted that even though the learned Addl. Sessions Judge discarded their evidence, this Court in appeal can make a reappraisal of their statements and take a different view. He referred to their statements and submitted that there presence at the place of the occurrence was so natural. Both the witnesses have stated that P.W. 6 Riazuddin was returning from his sister''s house along with P.W. 8 Mohd. Saleem after taking dinner. The house of his sister is about 500 feet away from the place of the occurrence. While returning, they went to take betel from the Vendor. At that time, they saw the accused standing near the Public Works Department Majdoor Union Office and the above Truck was standing there. They have clearly stated that from the movements of the accused, it was clear that he was anxiously waiting for something. They further stated that when the accused saw Munir Khan coming to that side on his scooter, he immediately occupied the Driver''s seat, started the truck at a very high speed and hit Munir Khan with great force from behind. They also went to the place of the occurrence. The accused, after hitting Munir Khan swerved the truck to the extreme left and after that he took a right turn and after crossing the main road dashed against the electric pole. The Truck came to a dead stop. The accused got down and fled away from the place of the occurrence. It was erroneous on the part of the learned Addl. Sessions Judge to have discarded the testimony of these two witnesses merely on the ground that the statements of these two witnesses recorded u/s 161, Cr.P.C. were identical. If the Investigating Officer recorded the statement in that way, it was not legal to ignore their statements. They can also not be termed as chance witnesses because they explained the reasons for their presence near the place of the occurrence to other persons because when Riazuddin told what he had witnessed, his elder brothers advised him not to open his mouth in order to avoid unnecessary trouble. Acting on the advice of his brothers, he did not tell about this accident to others.

The learned counsel has also submitted that it had been proved beyond all reasonable doubts that it was the accused who was driving the above vehicle. The accused was owner of the vehicle. P.W. 2 Ramchandra was the Driver of the above vehicle of the accused but he has clearly stated that he left the job on 22-8-1992. Hence, it is clear that he was not in the employment of the accused at the relevant time. If there was no Driver, then who could drive the vehicle, the burden lay on the accused to have furnished the relevant information. The learned Addl. Sessions Judge, has, therefore, correctly drawn an inference adverse to the accused. A reference was also made to the statement of the accused recorded u/s 313, Cr.P.C. In this statement, the accused gave a detailed description as to how the accident occurred and the language shows that the accused was stating the facts in first person. Abruptly he qualified the above statement by stating that the truck was being driven by his brother Darshan. D.W. 2 Darshan admittedly did not possess any driving licence. Hence, it was not possible that the accused would have asked his brother Darshan to take the vehicle to his Nohra.

The learned counsel then submitted that the accused had a motive to take revenge against Munir Khan. There was a dispute regarding some money matters between the accused and Mohan Singh. At the request of concerned parties Munir Khan and a few other persons accepted arbitration. It is alleged that the accused held the view that after arbitration, if Mohansingh did not pay the amount, it was the duty of Munir Khan to make payment on his behalf. The accused demanded money from Munir Khan but the latter refused on the ground that he only acted as Arbitrator and never undertook to make the payment on behalf of Mohansingh. Thereafter the accused threatened Munir Khan to take revenge. It was on account of this motive that he intentionally committed the murder by crushing Munir Khan under his Truck. Learned counsel conceded that there was a slight delay in recording the statements of the witnesses u/s 161 Cr.P.C. by the Investigating Officer. He explained that on account of this unfortunate incident, the whole town became tense and it created a law and order problem for the police. The Investigating Officer, therefore, devoted himself to the maintenance of law and order and no progress was made in investigation till the burial of Munir Khan was over. The statements were, therefore, recorded on the morning of 28-8-1992.

Mr. Shishodia then referred to the site plan and submitted that the facts found at the site eloquently proved that it was not a mere accident but very cold and calculated act to commit the murder of Munir Khan. The accused was aware that Munir Khan normally goes from that way daily. He, therefore, knew that the accused would pass through that route on that night. The movement of the Truck was noticed by the Investigating Officer clearly revealed that the accused chased Munir Khan and took his vehicle to the right of Munir Khan and hit the Scooter in such a way that Munir Khan and the Scooter were trapped under the right front wheel of the Truck. Thereafter, the Truck went further towards the left and from there the accused swerved the ''vehicle to the right arid after crossing the road, hit the electric pole. The accused would have made his escape good with the vehicle but the diesel tank was damaged by the handle of the scooter that stuck under the truck and made a hole in the diesel tank. As a result of this damage of the diesel tank, diesel drained off. The accused, therefore, could not move the truck further. He, therefore, left the truck.

In support of his contentions, Mr. Shishodia placed reliance on Kioshore Singh v. State of Raj 1985 Cri LR (Raj) 221 , Sreedharan Satheesan Vs. State of Kerala, , Pershadi Vs. State of Uttar Pradesh, , State of Haryana Vs. Manoj Kumar, and R. Payani Vs. The State, repr. by The Public Prosecutor, .

We have considered the rival submissions made at the bar and have also perused the record of the case.

At the very out set, we may state that it has not been denied even by the accused that on 26-8-1992 at about 10.55 P.M., the accident occurred. Munir Khan who was proceeding on his Scooter was run over by the Truck No. RSC 1313, as a result of which Munir Khan was seriously injured and shortly succumbed to his injuries. The vehicle involved was admittedly RSC 1313.

The most important question that falls for determination in this case is whether the above vehicle was driven by the accused. The learned counsel appearing for the accused-appellant has raised vehement arguments regarding this point. After a careful appraisal of the evidence on record as well as the circumstances of the case, we are inclined to agree with the view taken by the learned Addl. Sessions Judge that it was accused Satnam Singh who was driving the vehicle at the time of the accident.

It has not been disputed that the accused was the owner of the vehicle at the relevant time. From the statement of P.W. 2 Ramchandra, it is proved that previously the accused employed him as his driver. He, however, left the job on 22-8-1992. The accused, has not laid any other evidence to suggest that any other Driver in place of Ramchandra was employed by him. The defence version is that at the relevant time, the vehicle was driven by D.W. 2 Darshan Kumar, the brother of accused Satnamsingh. After going through the statement of D.W. 2 Darshan Kumar, we are not impressed by his statement that he was driving the vehicle at the relevant time. Drashan Kumar has stated that he was not possessing any Driving Licence for Heavy vehicle. Hence, it is not likely that the accused could entrust the above vehicle to Darshan Kumar for keeping the same in his Nohara which was about 3 Kilometers far from the place of the occurrence. A perusal of the trend of the cross-examination of the prosecution witnesses shows that on behalf of the accused, it was not suggested that at the relevant time, the vehicle was being driven by D.W. 2 Darshan Kumar. We would like to refer to the statement of the accused recorded u/s 313, Cr.P.C. We would also like to reproduce the statement made by the accused in his own words:

^^e`rd ?kVuk ds oDr dkQh rsth ls LdwVj pykrk gqvk vk;k o V�d ds nkfgus rjQ vkxs ds Vk;j ls Vdjk;k A V�d us e`rd dks cpkus ds fy, ck;h rjQ dkVk ysfdu LdwVj dk cSysal u gksus ds dkj.k e`rd V�d ls Vdjk;k ,oa ,DlhMsaV gks x;k A**

From the tenor of the statement made by the accused, it can safely be presumed that it has been made by the accused treating himself to be Driver of the vehicle. The accused has described the manner in which the accident occurred. It appears that thereafter he realised his mistake and immediately stated "...." In our opinion, the above statement clearly shows that the accused unwittingly and indirectly admitted that he was driving the above vehicle. When he realised his culpability, he immediately added that the truck was being driven by his brother.

D. W. 2 Darshan Kumar admitted that he lodged the report Ex. P. 48 while surrendering the gun of the accused. In Ex.P. 48, at portion C to D. Darshan Kumar stated that the accident has been caused by his brother. This is a statement made by D.W. 2 Darshan Kumar and it is binding on the accused. This also shows that the accused was involved in the above accident.

Now we may refer to the ocular evidence on record. P.W. 5 Mangilal has stated that on 26-8-1992, at about 10.30 PM he was going on foot from Railway Station Suratgarh to his house and when he reached near Chetan Cycle Works, he saw Munir Khan proceeding on a scooter. He was hit from behind by Truck No. RSC 1313, which was being driven by the accused. There was sufficient street light as well as illumination provided by adjoining shops. The accused immediately got down when the truck came to a halt and ran away. Since he was very near to the Truck, he recognised the accused. He has also stated that P.W. 4 Pradeep Kumar, P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem were there. Pradeep Kumar immediately lifted Munir Khan with the help of other persons and put him in a Jeep and brought him to the Hospital. It is correct that his statement was recorded after three days. He has further stated that he had no conversation with Pradeep Kumar. He only told about seeing of the accused to P.W. 9 Raja Mohd., the son of Munir Khan, when he met at the time of burial procession. He has admitted that this was not stated in his police statement Ex.D.2. He also did not lodge any report of this incident. He, however, stated that immediately after the accident, he went to the house of Munir Khan and informed about the accident to Noor Mohd., the brother of Munir Khan.

It may be stated that the statement of all the material witnesses including P.W. 5 Mangilal, P.W. 8 Mohd. Saleem and P.W. 6 Riazuddin were recorded by the Investigating Officer on 26-8-1992. The learned counsel appearing for the accused-appellants levelled severe criticism for examining the material witnesses so late. We have gone through the statement of P.W. 15 Om Prakash, the Investigating Officer. He has categorically stated that on account of the above accident, whole town was in the grip of high tension and law and order problem became acute. He had, therefore, to devote his attention to the maintenance to law and order problem and the kept vigilance during burial procession. Hence he could not find time on 27-8-1992 for contacting the witnesses. However, as soon as he became free, he recorded the statements of the witnesses on 28-8-1992. In our opinion, the delay has been satisfactorily explained by the Investigating Officer P.W. 15 Om Prakash. Thus, the learned Addl. Sessions Judge has not committed any mistake in placing reliance on the testimony of P.W. 5 Mangilal. His presence has been shown by P.W. 4 Pradeep Kumar in his statement Ex. D.1/A which was, recorded on 27-8-1992. It has not been shown how P.W. 5 Mangilal was interested in the prosecution. His house is near the house of Munir Khan. Hence it is natural that he might be going to his house from that way at the time of the occurrence.

The learned counsel appearing for the accused-appellant has submitted that the prosecution has not produced Noor Mohd. to corroborate the statement of P.W. 5 Mangilal. The learned Public Prosecutor has submitted that since Noor Mohd. was not on good terms with Munir Khan, the prosecution did not like to produce him in the witness box. The learned counsel for the appellant has also submitted that even in the FIR that was lodged by Pradeep Kumar, the names of witnesses viz., P.W. 5 Mangilal, P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem were not mentioned. If we notice the sequence of events, it would be clear that P.W. 4 Pradeep Kumar acted promptly as soon as he saw the accident and summoned the Jeep and shifted Munir Khan to the Hospital without delay so that proper medical aid could be made available to the injured. Thereafter, when the Doctor declared him dead, he immediately went to the Police Station and lodged the FIR. This all shows that Pradeep Kumar was in lot of haste. Hence, it may be possible that he did not lodge the FIR in detail.

It is settled law that generally the names of the prosecution witnesses may be mentioned but the FIR is not the end all and be-all of the matter. Hence mere non-mention of the names of witnesses in the FIR is not by itself enough for disbelieving the prosecution story. We, therefore, hold that the testimony of the alleged eye witnesses viz. P.W. 5 Mangilal. P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem cannot be rejected merely because their names were not mentioned in the FIR. We have also stated the reasons why Pradeep Kumar could not lodge a detailed report. Of course, there are certain contradictions and omissions in the testimony of P.W. 5 Mangilal but such lacunae also occur even in the testimony of honest witnesses.

The learned Addl. Sessions Judge has rejected the testimony of P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem on the ground that their statements u/s 161 Cr.P.C. are verbatim. In our opinion, this was hardly a ground for discarding the testimony of these two witnesses. If the Investigating Officer has not correctly recorded the statements of these two witnesses, on that ground the testimony of these two witnesses cannot be rejected. We have to judge their testimony in a comprehensive manner. These two witnesses have stated that they saw the accused standing near the Office of Public Works Department Mazdoor Union by the side of the above truck. The accused gave the impression as if he was waiting for somebody. Thereafter, they saw Munir Khan going on a Scooter. The accused immediately boarded in the Truck and started to drive it very fast and, dashed against the scooter. As a result of the above accident. Munir Khan was completely run over by the right wheel and that Munir Khan was proceeding extreme on the left of the main road.. They also saw Pradeep Kumar shifting Munir Khan in a Jeep to the Hospital. They also saw P.W. 5 Mangilal. The learned counsel appearing for the accused-appellant has submitted that these two witnesses saw the whole incident so closely but did not report the matter to any body after the accident and thus, they appear to be chance witnesses and hence their testimony is of no credence.

The explanation offered by these two witnesses is that Riazuddin told about this incident to his brother and the latter asked him not to tell others in order to avoid the embarrassment and trouble and, therefore, they did not tell anybody about this incident even when they went to the Hospital. These two witnesses have further stated that they went to the house of Riazuddin''s sister and, thereafter they were going towards the place of the occurrence. They took- betel from vendor. At that time, they saw the accused hitting the scooter of Munir Khan.

In this connection, we would like to refer to the statement of D.W. 2 Darshan Kumar. Darshan Kumar has stated that he was asked by his brother accused Satnamsingh to take the Truck from the Mechanic and then to keep it in his Nohara. Accordingly, he came to the shop of Mechanic, which was near the Public Works Department Mazdoor Union. Thus, this part, of the testimony of P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem regarding movement of the above Truck from Public Works Department Mazdoor Union Office immediately before the occurrence stands proved.

From the above, we are convinced that P.W. 5 Mangilal, P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem have witnessed the occurrence. In our opinion, the learned Addl. Sessions Judge was not correct in rejecting the testimony of P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem on the ground that their statement u/s 161 Cr.P.C. were verbatim. Even if the statements of P.W. 6 Riazuddin and P.W. 8 Mohd. Saleem are ignored, from the facts and circumstances of the (Me, which have been narrated hereinabove, it is clear that it was accused Satnamsingh who was driving the above vehicle at the relevant time.

In criminal cases, the onus lies on the prosecution to prove the guilt of the accused but in the cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, that such can be negatived by proof of some fact which, in its nature, can only be within the special knowledge of the accused. But if the accused in such a case does not give an explanation at all or gives a false explanation; this by itself is a circumstance which may well turn the scale against him. In the instant case, the accused has given a false explanation that the Truck was being driven by his brother Darshan Kumar.

Now we may advert to the actual occurrence. The site plan Ex.P.5A and site inspection Memo Ex.P.5 are the very important documents in this case. These documents have been duly proved by P.W. 15 Om Prakash, the Investigating Officer. A perusal of Site Plan Ex.P.5A shows that the road on which the scooter was proceeding was 20'' in width. The deceased was proceeding on the extreme left of this road. The above truck came from behind and after going to the left of the Scooter of Munir Khan, it dashed against the Scooter of Munir Khan in such a way that Munir Khan and his Scooter were fatally trapped under the front right wheel of the truck. Thereafter, the truck swerved towards the left and then the driver took a right turn and after crossing 20'' wide road, again hit an electric pole. Thereafter the Truck camp to a dead stop at point ''D''.

D.W. 2 Darshan Kumar has stated that when he was driving the above Truck, Munir Khan came on the scooter from behind and wanted to overtake his truck. The deceased dashed against the diesel tank and was then hit by the front right wheel of the truck. He further stated that thereafter the Truck swerved to the left and after hitting the stone slabs, it took a right turn and again hit an electric pole. He controlled the vehicle after it proceeded a little farther. When he got down and saw that the scooter rider had been injured, he got nervous. He further admitted that there were street lights and light was also illuminating from the adjoining shops. It is important to note that D.W. 2 Darshan Kumar did not disclose this fact that the accident occurred while he was driving the above truck to anybody. He did not even report the matter to the Police even when his brother was arrested when the case was converted into a murder case. He offered an explanation that he orally told Deputy Superintendent of Police but the latter threatened him that in case he made such an allegation, he would also be challaned in the murder case. The witness has categorically admitted that he did not apply the brakes of the Truck even when the Scooter rider dashed against the diesel tank. In fact he clearly admitted that he did not apply the brakes at any stage of the accident. He stated that had he applied the brakes, the truck would have fallen. He admitted that this can only happen when the speed of the vehicle was fast. In other words, from his statement, it is clear that the speed of the Truck was very fast and it was not possible for him to apply the brakes. Thus, from the statement of D.W. 2 Darshankumar, the correctness of the site plan Ex.P.5 A and site inspection memo Ex.P.5 stands proved. This is stated in Site Inspection Memo Ex.P.5 that on account of the above accident, the stand of the Scooter got stuck under the Diesel Tank. The above stand pierced into the tank. The diesel that was contained in the tank drained off. Hence the vehicle came to a dead stop. Thus, from the site plan Ex.P.5 and site inspection Memo Ex.P.5 A, it can be reasonably inferred that the accused intentionally dashed against Munir Khan and it was done in such a way that he was completely trapped under the front wheel of the truck and for this purpose, he brought the above vehicle to the extreme left of the above scooter and involved the scooter under the right front wheel of the truck. In ordinary accidents, the vehicles are never driven to the extreme left. Thus, from the above, it can be concluded that the accused was intending to hit Munir Khan is such a way that he might be run over under the wheel of the truck. This is amply demonstrated by the Injury Report. The pelvic bone that is the strongest bone human body was crushed. In this way, the accused is guilty of intentionally hitting Munir Khan in such away that he could not escape.

It appears that thereafter, the accused wanted to flee away from the place of the occurrence with the truck but unfortunately the diesel drained off and it was not possible to drive the vehicle any more. Thus, in this manner, in our opinion, the Site Plan Ex.P.5 and Site Inspection Memo Ex.P.5 A are the tell-tale documents which eloquently prove the intention of the accused of committing the offence of culpable homicide.

It is also important to note that the accused did not at all apply the brakes of the vehicle. This is also proved by the statement of D. W. 2 Darshan Kumar.

Now, we may consider the evidence regarding motive. P.W. 1 Shankerlal has stated that Satnamsingh used to look after his Truck No. 111 and 112. In the month of August, Bank Officers came to demand the instalments of the Truck. He asked the accused for making the payment. The accused told him that Munir Khan owned some money to him and asked him to persuade Munir Khan to make the payment. Thereafter, he told Munir Khan about this fact but the latter told that he did not owe any amount to the accused. This witness was turned hostile. This witness is a Law Graduate and for sometime he was also an Oath Commissioner for the Revenue Courts. In his statement recorded u/s 164, Cr.P.C, he has stated that Munir Khan made arbitration with regard to a dispute between the accused and Mohansingh of Agra. He further stated that the accused threatened Munir Khan before him to crush him under the truck. He stated that this statement was given by him under pressure and threats of the Police. From the above statement, it can safely be gathered that the witness is not telling the truth. Probably, there was a dispute between the accused and Mohansingh of Agra regarding which Munir Khan made arbitration.

P.W. 3 Gurmeetsingh has given a positive statement regarding arbitration made by Munir Khan with regard to the dispute between accused and Mohansingh of Agra. He stated that in the above meeting, it was decided that both the parties will settle their accounts, mutually. He further stated that Munir Khan undertook the responsibility on behalf of Mohansingh. He also stated that Satnamsingh came to him, and confessed that he has crushed Munir Khan under his truck. We may state at once that this so-called extra judicial confession is not at all reliable and we do not attach any (importance to it. P.W. 7 Bhanwaru Khan is the another witness regarding this point. He has staged that, before about 10-12 days of the date of the occurrence, accused came and told him that Munir Khan has not taken any steps for making payment on behalf of Mohansingh of Agra. The accused further told that he would take revenge against Munir Khan, He however, advised the accused not to get irritated. He further stated that the accused clearly told him that he would crush Munir Khan under the truck. Since he did not attach any importance to the threats given by accused, he did not report the matter to the Police.

P. W. 9 Raja Mohd. is the son of deceased Munir Khan. He has also corroborated this fact that the accused came to their shop and demanded money from his father, which was due from Mohansingh of Agra and the same was not being paid by him. Munir Khan clearly told him that it was not his responsibility to pay the money on behalf of Mohansingh. Munir Khan further asked the accused not to bother him in future. Thereupon, the accused threatened with dire consequences and left the shop.

P.W. 12 Birbal Khan also participated in the above arbitration proceedings. He has stated that in the arbitration proceedings, it was decided that both the parties will settle their accounts mutually and Munir Khan undertook to make payment on behalf of Mohansingh of Agra.

Thus, from the above evidence, it is clear that there was some dispute between the accused and Mohansingh of Agra. That dispute was arbitrated by Munir Khan and ors. and ultimately Munir Khan undertook to make payment on behalf of defaulting party. Since Mohansingh owed certain amount to the accused, which was not paid by him and the accused demanded the same from Munir Khan. It appears that Munir Khan did not relish the demand made by accused and he frankely told the accused not to bother him in future. The accused felt aggrieved and openly told to take revenge against Munir Khan. In our opinion, this constituted the motive for the committing the murder of Munir Khan by crushing him under the above Truck.

The facts and circumstances of the case as discussed above clearly show that on the fateful night, the accused intentionally dashed against the deceased in such a way that Munir Khan was trapped under the right front wheel of the truck. We, therefore, hold that the learned Additional Sessions Judge has rightly held the accused-appellant guilty of the offence u/s 302 IPC The sentence awarded to the accused-appellant cannot be said to be excessive.

In the result, we do not find any force in this appeal and it is hereby dismissed.

Let the record of this case be sent back to the learned lower court forthwith.