Punjab-Haryana High Court
Kulwant Singh vs State Of Punjab on 11 August, 2010
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No.215-SB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.215-SB of 2002
Date of decision: 11.8.2010
Kulwant Singh
... Appellant
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mrs. Lisa Gill, Advocate, and
Mr.A.S.Dhindsa, Advocate,
for the appellant.
Mr.Arshvinder Singh, DAG, Punjab.
...
JORA SINGH, J.
Kulwant Singh preferred this appeal to challenge the judgment of conviction and order of sentence dated 14.1.2002 rendered by Sessions Judge, Patiala, arising out of FIR No. 6 dated 16.1.1996 under Section 302 IPC, PS Julkan.
By the said judgment, he was convicted under Section 304-A IPC and sentenced to undergo RI for two years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for three months.
Prosecution story, in brief, is that Lachhman Singh son of Puran Singh on 13.1.1996 at about 3.30 AM while present in the area of Village Channa Maur reported to the police party headed by SI Kuldeep Kumar, PS Julkan, that he was a resident of Village Malimajra. He was the agriculturist as well as labourer because he possessed a small piece of land. His brother Babu Ram (deceased) also used to work as labourer. Normally Crl.Appeal No.215-SB of 2002 2 Babu Ram used to work as labourer with Naib Singh, Jaswant Singh and Kulwant Singh, residents of Village Jalalabad. On 12.1.1996 at 10.00 AM, Kulwant Singh came to his house and had taken away Babu Ram for labour work. On 13.1.1996 at about 2.00 AM, he was present in his house. Naib Singh, Jaswant Singh, Maya Chand, Prem, Arjan Singh, Balbir Singh, Banarsi and Hem Raj, Sarpanch, came to his house on tractor trolley and informed him that his brother Babu Ram came under the tractor driven by Kulwant Singh. Occurrence took place on the metalled road between Devigarh and Pehowa in the area of Village Dudan Sadan. Dead body of Babu Ram was lying in the trolley. On receipt of information from Naib Singh and others, Lachhman Singh had gone to lodge a report but at Channa Maur, police party had met him, where his statement (Ex.PL) was recorded. Statement was read over and explained to Lachhman Singh, who had thumb marked the same in token of its correctness. After making endorsement (Ex.PL/1), statement was sent to the police station, on the basis of which, DDR No.35 dated 13.1.1996 was recorded. Investigating Officer had gone to the spot. Inquest report was prepared and dead body was sent to the hospital for postmortem examination. Tractor trolley was taken into police possession vide separate memo attested by the witnesses.
On 16.1.1996, statement of Dev Singh son of Durga Dass was recorded. He reported to the police that on 12.1.1996 at 3.00 PM, Kulwant Singh came to his house and requested to accompany him to bring fertilizer from the society. He had gone with Kulwant Singh. Fertilizer was loaded in the trolley. After that, they were near the Bus Stand of Village Dudan Sadan, where Babu Ram was found present. Babu Ram had boarded the tractor driven by Kulwant Singh and sat on the left mudguard of the tractor. Crl.Appeal No.215-SB of 2002 3 Tractor was of HMT make and was without number. From Village Dudan Sadan, they were going towards Devigarh side. Tractor was being driven rashly and negligently by Kulwant Singh. Kulwant Singh was requested to drive tractor slowly. Instead of slowing down the speed, speed was increased. They were at a distance of one kilometer ahead of Village Dudan Sadan at about 8.00 PM, then Babu Ram fell down from the tractor and was run over by the tractor trolley. Tractor trolley was stopped at some distance. Babu Ram was found dead on the spot. Accident was due to rash and negligent driving of tractor by Kulwant Singh. After accident, Kulwant Singh with tractor trolley had left the scene of crime. He had gone to his relations. On 16.1.1996, FIR under Sections 279/379/304-A IPC was registered. After completion of investigation, challan was presented in Court.
Accused was charged under Sections 279/304-A IPC, to which he pleaded not guilty and claimed trial.
During the pendency of case in the Court of JMIC, Patiala, complainant filed Crl. Misc. No. 14564-M of 1996 under Section 482 Cr.P.C. with request to direct SSP,Patiala, to register case under Section 302 IPC, and the following order was passed by the Hon'ble High Court on 5.3.1997:-
"If during the course of trial it is found that any other offence is drawn, the said Court in its discretion in accordance with law may take cognizance and act accordingly. The fact as to what is the material on the record can be argued before the said Court. The said Court may even, if necessary, commit the case to the Court of Session. At this stage, keeping in view the Crl.Appeal No.215-SB of 2002 4 totality of facts and circumstances, it will not be appropriate to direct the trial of the said case to be stopped."
After recording some evidence by the JMIC, Court was of the opinion that a prima facie case was made out to frame charge under Section 302 IPC. Vide order dated 20.10.1999, case was committed to the Court of Session for trial.
Accused was charged under Section 302 IPC, to which he pleaded not guilty and claimed trial.
Prosecution examined PW1 Dr. Harish Tuli, who stated that on 13.1.1996, he had conducted postmortem examination on the dead body of Babu Ram and found the following injuries on the dead body:-
"1. Crushed wound on the left side of scalp, forehead and face. All the bones were fractured and crushed. Brain on the left side was also crushed. Cranial cavity showed half of the brain missing and it showed haemorrhage as well.
2. 8 cm x 5 cm lacerated wound on the front of left thigh.
Bone underneath was fractured.
3. Multiple small and large abrasions and contusions were present all over the body."
Cause of death was due to head injury. All the injuries were found to be ante mortem in nature and sufficient to cause death in ordinary course of nature.
PW2 HC Satnam Singh and PW3 PHC Pritpal Singh tendered their affidavits, Ex.PC and PD, respectively.
PW4 Kaish Kumar, Registration Clerk, DTO Office, Sangrur, Crl.Appeal No.215-SB of 2002 5 stated that Tractor No. PB-11-G-2762 was registered in the name of Naib Singh son of Chanda Singh and Charan Kaur wife of Chanda Singh. Ex.P5 is the copy of RC.
PW5 ASI Jawahar Singh had mechanically tested the tractor on 18.1.1996 and submitted his report (Ex.PE).
PW6 Lachhman Singh, complainant, stated that his brother Babu Ram used to work as labourer with Kulwant Singh, Naib Singh and Jaswant Singh. About 5 years back, Kulwant Singh came to his house at 10.00 AM. Babu Ram was taken away by Kulwant Singh. On the day of occurrence, he along with Baldev Singh was coming from the side of Village Devigarh towards his village on a bicycle. Baldev Singh was cycling the bicycle and he was on the pillion. At about 8.00-8.15 PM, they were near the bridge of water channel in the area of Village Franshwala, then heard cries. When they were near the grave yard, then noticed Kulwant Singh while driving tractor sometime ahead and sometime in reverse gear. One person was found lying in between the front and rear tyres of the tractor. Two persons were also with Kulwant Singh. But he had requested Baldev Singh, who was driving the by-cycle, to go ahead and why to attend the cries of the person. They came to their houses. On 13.1.1996 at 1.30 AM, dog barked in front of their house. Then he came out and found 10-15 persons standing outside the house. On the request of Arjan Singh, he had gone inside the house. Naib Singh told him that his brother Babu Ram had died. On enquiry, Naib Singh failed to explain how Babu Ram had died. Naib Singh also made enquiry from him to drop the dead body of Babu Ram from the trolley in front of his house. He replied that he was alone in the house and requested that dead body of Babu Ram should be taken to the Crl.Appeal No.215-SB of 2002 6 house of Babu Ram. Intimation was given to the villagers. Then accused and his companions had left the tractor trolley in front of his house and ran away. Dead body of Babu Ram was lying in the trolley. Intimation was given to the police, but he was not heard by the police. Police came to his house at about 4.00 AM and he disclosed about the names of accused as Kulwant Singh, Naib Singh and Jaswant Singh. His thumb impressions were obtained on blank papers. After that his statement was not recorded by the police.
PW7 Dev Singh stated that he was in his house. Kulwant Singh came and requested him to accompany to bring fertilizer but he told to Kulwant Singh that he had fever. Kulwant Singh told him that he would get medicine for him (PW7). Then he agreed to accompany Kulwant Singh. Kulwant Singh also reported that Babu Ram was already sent to Dudan Society. Kulwant Singh was on tractor trolley. He along with Kulwant Singh had gone to Village Dudan on tractor trolley. Fertilizer bags were loaded in the trolley from Dudan Society by Babu Ram. After that, they were near the flour mill. He along with Babu Ram was in the trolley. Near flour mill, Kulwant Singh had taken liquor. Kulwant Singh had brought one liquor bottle with him from Devigarh. After taking liquor, Kulwant Singh had become tipsy. Babu Ram was sitting on the left mudguard of the tractor. Tractor was being driven rashly and negligently by Kulwant Singh. Suddenly, brakes were applied, then Babu Ram fell down on the road. Tractor was stopped at a distance of one killa. Babu Ram was crushed under the tractor trolley and was crying for help. Kulwant Singh was requested to take Babu Ram to Dudan Sadan Hospital, but he replied him to sit with Babu Ram and would come and take both (PW7 and Babu Ram) Crl.Appeal No.215-SB of 2002 7 with him. Kulwant Singh came with tractor trolley. He had concealed himself in the sarson crop. Kulwant Singh drove his tractor over the head of Babu Ram and crushed him. After witnessing the accident, he ran towards village side and cannot state what happened after that.
PW8 Constable Hoshiar Singh tendered his affidavit (Ex.PF). PW9 Baldev Singh stated that one day before Lohri of 1996, he and Lachhman Singh on a bicycle were coming from Devigarh towards their village. At about 8.00 PM, they were near the bridge of water channel in the area of Franshwala, then heard cries. One person was noticed while lying dead under the tractor. Kulwant Singh was sitting on the seat of the tractor. Lachhman Singh was requested to go ahead as they have nothing to do with the person lying under the tractor. Some persons were also present on the spot on the other side of the tractor. They went to their houses. In the morning, he came to know about the death of Babu Ram.
PW10 ASI Baldev Singh was with the Investigating Officer and has supported the version of Investigating Officer.
PW11 SI Kuldeep Kumar, Investigating Officer, stated that on 13.1.1996 at 3.30 AM, he was near Channa Maur. Lachhman Singh had met the police party and then his statement (Ex.PL) was recorded. After making endorsement, statement was sent to the police station, on the basis of which, DDR was recorded. After that, he had gone to the spot where dead body of Babu Ram was lying. Inquest report was prepared. Dead body was sent to the hospital for postmortem examination. Statements of witnesses were recorded. After that, he had gone to the place of occurrence, where straws of rice plant (parali) were found lying on the ground stained with blood. Same were lifted from the spot and made into a sealed parcel Crl.Appeal No.215-SB of 2002 8 with seal bearing impression `BS'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. PHC Pritpal Singh had handed over papers of postmortem report with other papers and the clothes worn by the deceased to him. Clothes were taken into police possession vide separate memo attested by the witnesses. Tractor trolley was also taken into police possession. Case property was deposited with the MHC. Initially, DDR No.35 dated 13.1.1996 was recorded. Later on, FIR was recorded. On 6.2.1996, accused was arrested. Driving licence of accused and RC of tractor trolley were recovered from the accused and were taken into police possession vide separate memo. On 7.2.1996, Kulwant Singh suffered disclosure statement that he had kept concealed purse and watch of Babu Ram in the house of his brother-in-law and could get the same recovered. When police party was going to effect recovery, then appellant stated that he had not concealed any article of Babu Ram. Disclosure statement was made under threat. After completion of investigation, challan was presented in the Court.
After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent.
In defence, appellant stated as under:-
"On 12.01.1996 at about 6.00 pm, I along with my brother Jaswant Singh, Balbir Singh, Maya Chand, all residents of village Jalalabad, Tehsil and District Patiala, were coming from Devigarh after purchasing necessary articles for celebrating lohri festival on my tractor trolley. When I reached near the tea Crl.Appeal No.215-SB of 2002 9 shop situated at the end of village Dudhan Sadhan, there was crowd. Hans Raj, Sarpanch of Village Dudhan Gujran, was standing there and who stopped me by giving hand and I stopped my tractor and came down from the tractor. Hans Raj told me that a person of your side is lying on the road who died in an accident and kindly see whether you know him or not. On seeing that he was Babu of village Mali Majra to whom I recognised being resident of my neighbour village. On asking of the persons standing there including Hans Raj, we with the help of persons standing there loaded the dead body of Babu Ram in my trolley and took it away to village Mali Majra. There I along with my other associates informed the relatives of Babu that we have brought the dead body of Babu from village Dudhan Sadhan who met with an accident and left the tractor trolley there and I along with my brother and aforesaid persons left to my village. The relatives of Babu Ram are influential persons and having a full say in the police department because nephew of Babu Ram was an employee of Prosecution Department of Punjab at Chandigarh. The relatives of Babu forced me to admit that accident has been taken place by my tractor so that they could get some money from the insurance department but I did not agree with them, i.e. why I was falsely implicated in the aforesaid case. I am innocent."
In defence, copy of judgment of Hon'ble High Court was tendered into evidence.
Crl.Appeal No.215-SB of 2002 10
After hearing learned Public Prosecutor for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted under Section 304-A IPC and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on file.
Learned counsel for the appellant argued that occurrence was on the intervening night of 12/13.1.1996 and statement of Lachhman Singh was recorded at 3.30 AM on 13.1.1996, but FIR is dated 16.1.1996. No explanation why this delay. First version of Lachhman Singh was that on 12.1.1996 at 10.00 AM, Kulwant Singh came to his house and on the request of Kulwant Singh, Babu Ram had gone with him (Kulwant Singh). During night time at 2.00 AM, 8 persons came to his house and reported regarding the death of Babu Ram. As per statement of Lachhman Singh dated 13.1.1996 (Ex.PL), he was not the eye witness but on 16.1.1996, statement of Dev Singh was recorded. Allegation of Dev Singh was that he along with Kulwant Singh had gone to Dudan Sadan Society to bring fertilizer bags. After loading fertilizer bags in the trolley, they were near the Bus Stop of Village Dudan Sadan, where Babu Ram had met them. Babu Ram set on the left mudguard of the tractor. Tractor was being driven by Kulwant Singh. They were at a distance of one km. from Dudan Sadan. Time was 8.00 PM when Babu Ram fell down on the road and was run over by the tractor trolley. He had gone to his relations. As per Ex.PL, Lachhman Singh was not the eye witness. As per Ex.DA, statement of Dev Singh dated 16.1.1996, he alone had witnessed the occurrence. In case Dev Singh had witnessed the occurrence, then he should have reported the Crl.Appeal No.215-SB of 2002 11 matter to the police. There was no idea to leave the dead body on the spot and visit the house of his relations without informing to the complainant party. Lachhman Singh had appeared before JMIC, Patiala, then stated that he along with Baldev Singh on a bi-cycle was coming from Village Devigarh towards their village. They were near the bridge of water channel in the area of Village Franshwala, then heard shrieks. One person was seen lying under the tractor driven by Kulwant Singh. Two persons were also present on the spot. They had not gone to the place of occurrence. They came back to their village. At about 1.30 AM, Naib Singh, Jaswant Singh, Maya Chand, Prem, Arjan Singh, Balbir Singh, Banarsi and Hans Raj, Sarpanch, came to his house and reported that Babu Ram was run over by the tractor driven by Kulwant Singh. Similar is the statement of Baldev Singh. As per Lachhman Singh and Baldev Singh when appeared before the JMIC, case of prosecution was that occurrence was witnessed by Lachhman Singh and Baldev Singh. Deceased was the real brother of Lachhman Singh and if they had heard the shrieks, then they both should have gone to the place of occurrence. But instead of going to the spot, both came to their houses. Now there are two versions, i.e., one version is that occurrence was witnessed by Dev Singh, and second version is that occurrence was witnessed by Lachhman Singh and Baldev Singh. When there are two versions, then version favourable to the accused is to be accepted.
Learned State counsel argued that Babu Ram (deceased) was a labourer. On 12.1.1996 in the morning, he was taken away by Kulwant Singh to bring fertilizer from Dudan Society. After loading fertilizer bags in the trolley, tractor was being driven rashly and negligently by the Crl.Appeal No.215-SB of 2002 12 appellant. Babu Ram was on the mudguard of the tractor. Dev Singh was also with Kulwant Singh. Request was made to Kulwant Singh to drive tractor slowly but instead of slowing down the speed, speed was increased. Appellant had applied brakes suddenly, then Babu Ram fell down and was run over by the tractor. Evidence on the file was rightly scrutinized by the trial Court. Appellant had no enmity with the complainant party. Dead body was recovered from the trolley of the appellant. In case accident was not due to rash and negligent driving of tractor by the appellant, then there was no idea to shift the dead body from the place of occurrence to the house of deceased. After the complainant came to know about the death of Babu Ram, then matter was reported to the police. DDR was recorded. According to DDR, accident was due to rash and negligent driving of the tractor by the appellant. Appellant when examined under Section 313 Cr.P.C., then stated that he was driving tractor and was in the area of Village Dudan Sadan. Hans Raj, Sarpanch of Village Dudan Gujran, gave signal to stop tractor. Dead body of Babu Ram was loaded in the trolley and was brought to the house of deceased. Hans Raj was not produced in defence to state that on his request, appellant had stopped tractor in the area of Village Dudan Sadan and on their request, dead body of Babu Ram was loaded in the trolley to bring the same to the house of deceased because accident was with some unknown vehicle.
Admittedly, Babu Ram (deceased) was the real brother of Lachhman Singh, complainant. Death of Babu Ram was in the accident in the area of Village Dudan Sadan. From the scene of crime, dead body of Babu Ram was brought to his house in the tractor trolley of Kulwant Singh. According to the prosecution, tractor was being driven rashly and Crl.Appeal No.215-SB of 2002 13 negligently by the appellant. Appellant was under the influence of liquor and had applied brake suddenly. Babu Ram fell down and was run over by the tractor, whereas defence version of the appellant was that he along with his brother Jaswant Singh, Balbir Singh and Maya Chand was coming from the side of Devigarh after purchasing some articles. They were on the tractor trolley and were in the area of Village Dudan Sadan. There was a crowd. Hans Raj, Sarpanch of Village Dudan Gujran, was standing there and on the request of Hans Raj, tractor was stopped. On the request of Hans Raj, dead body lying on the spot was identified as of Babu Ram of Village Malimajra. On the request of persons present there including Hans Raj, dead body of Babu Ram was brought to the house of deceased in the trolley. Tractor trolley was left outside the house of deceased. Relatives of Babu Ram were very influential persons and had a say in the police department. Nephew of Babu Ram was employee in the Prosecution Department. When there are two versions, then the Court is to see which version is correct one. Whether version as per prosecution story or defence version seems to be probable.
Lachhman Singh, complainant, on 13.1.1996 reported to the police while present in the area of Channa Maur that on 12.1.1996 at 10.00 AM, his brother was taken away by Kulwant Singh for labour work. On 13.1.1996 at 2.00 AM, Naib Singh, Kulwant Singh (appellant), Maya Chand, Prem, Balbir Singh, Banarsi, Arjan Singh and Hans Raj, Sarpanch, came to his house and reported that Babu Ram was run over by the tractor in the area of Village Dudan Sadan. Dead body of Babu Ram was lying in the trolley. Tractor trolley was left outside the house of the complainant. Ex.PL dated 13.1.1996 is the statement of Lachhman Singh but in the Crl.Appeal No.215-SB of 2002 14 statement, there is not a word that he along with Baldev Singh on a bi-cycle was returning from the side of Village Dudan Sadan and was near the water channel in the area of Village Franshwala, then heard shrieks. One person was seen lying under the tractor driven by Kulwant Singh. Tractor was being driven forward and backward. Two persons were also present there but he along with Baldev Singh had not gone to the spot, where the person was noticed lying under the tractor.
Initially, challan was presented under Sections 279/379/304-A IPC. Before JMIC, Lachhman Singh appeared as witness and stated that he along with Baldev Singh on a bi-cycle was returning from the side of Village Dudan Sadan towards their village. They were near the Franshwala culvert, then heard shrieks of a person and that person was seen lying under the tractor driven by Kulwant Singh. Tractor was being driven forward and backward. Two persons were also found present there but he along with Baldev Singh had not gone to the place of occurrence. Rather they came back to their village. At about 2.00 AM, Naib Singh, Kulwant Singh, Jaswant Singh, Arjan Singh, Maya Chand, Balbir Singh, Banarsi and Hans Raj came and reported that Babu Ram was run over by the tractor driven by Kulwant Singh.
Lachhman Singh again appeared in the Court of Session as PW6 and repeated the same story that he along with Baldev Singh on a bi- cycle was returning from the side of Village Dudan Sadan towards their village. They were near the Franshwala culvert, then heard shrieks of a person and that person was seen lying under the tractor driven by Kulwant Singh. Tractor was being driven forward and backward. Two persons were also found present there but he along with Baldev Singh had not gone to the Crl.Appeal No.215-SB of 2002 15 place of occurrence. His thumb impressions were obtained on blank papers. Wife of Babu Ram told him that Babu Ram was taken away by Kulwant Singh. In case thumb impressions of Lachhman Singh were obtained on blank papers, then he should have sent complaints to higher authorities that his thumb impressions were obtained by the police on blank papers, but no complaint to any authority. Investigating Officer categorically stated that statement (Ex.PL) was recorded correctly without any omission or commission. Before the Magistrate and the Session Court, Lachhman Singh stated that after hearing shrieks, one person was found lying under the tractor driven by Kulwant Singh but no explanation why Lachhman Singh or Baldev Singh had not gone to the place of occurrence. Deceased was the real brother of Lachhman Singh. Lachhman Singh could easily recognise that shrieks were of his brother Babu Ram because Babu Ram was taken away by Kulwant Singh on 12.1.1996. Kulwant Singh was also noticed while driving the tractor. When Babu Ram had gone with Kulwant Singh and shrieks were heard, then Lachhman Singh and Baldev Singh should have gone to the place of occurrence to know what was the matter. Why the man was under the tractor and why tractor was being driven forward and backward. Lachhman Singh or Baldev Singh did not state a word that Kulwant Singh appellant was under the influence of liquor.
Contrary to the statements of Lachhman Singh and Baldev Singh, Dev Singh on 16.1.1996 reported to the police that he along with Kulwant Singh had gone to Dudan Sadan to bring fertilizer and after loading fertilizer, they were near the Bus Stand of Dudan Sadan, where Babu Ram was found present. From Bus Stand Dudan Sadan, Babu Ram had boarded the tractor. He was on the mudguard of tractor. Tractor was Crl.Appeal No.215-SB of 2002 16 being driven rashly and negligently by the appellant and when they were at a distance of one km ahead of Village Dudan Sadan at 8.00 PM, then Babu Ram fell down from the tractor and was run over by the tractor. Kulwant Singh with tractor trolley had left the scene of crime. He had gone to his relations. Ex.DA is the statement of Dev Singh dated 16.1.1996.
Before JMIC, Dev Singh appeared and stated that he along with Kulwant Singh had gone to bring fertilizer. After loading fertilizer in the trolley, they were returning to Village Malimajra. Babu Ram was on the left mudguard of the tractor. He was in the trolley. Tractor was in the area of Village Dudan Sadan, then appellant suddenly applied brake to his tractor. Earlier to that, appellant had consumed liquor near flour mill of Village Dudan Sadan. Kulwant Singh had given push to Babu Ram, who fell down from the tractor and was run over. After 15-20 days of the occurrence, his statement was recorded on 16.1.1996. After accident, Kulwant Singh had left the place of occurrence with tractor trolley. He was near the dead body. Again Kulwant Singh came with tractor trolley. He had concealed himself in the sarson crop adjoining the place of occurrence. Kulwant Singh ran over the tractor over the head of Babu Ram. After that, he ran away out of fear.
After the case was committed to the Court of Session for trial, then again Dev Singh appeared as DW7 and repeated the same story. In case, Dev Singh had witnessed the occurrence, then there was no idea to remain silent. After leaving dead body on the spot, why Dev Singh had gone to his relations and reported the matter to the police on 16.1.1996. Statement of Dev Singh (Ex.DA) is contrary to his statement when he appeared firstly before the JMIC and second time before the Session Court. Crl.Appeal No.215-SB of 2002 17 If Dev Singh had made statement after 15-20 days of the occurrence, then it does not mean that statement (Ex.DA) dated 16.1.1996 is not correct one. No allegation of Dev Singh that his statement (Ex.DA) was not correctly recorded. Investigating Officer appeared in Court and then stated that Statements (Ex.PL) and (Ex.DA) were recorded correctly without any omission or addition. As per Ex.PL, Lachhman Singh is not the eye witness but in Court, Lachhman Singh and Baldev Singh stated that they had witnessed the occurrence and if they had witnessed the occurrence, then why they failed to report the matter to the police immediately after the occurrence that tractor was being driven rashly and negligently by the appellant under the influence of liquor and Babu Ram was run over by the tractor driven by the appellant. Jaswant Singh, Arjan Singh, Maya Chand, Balbir Singh, Banarsi and Hans Raj were not examined by the prosecution to state that at 2.00 AM on 13.1.1996, they had not gone to the house of Lachhman Singh to report that death of Babu Ram was in the accident.
As per Ex.DA, i.e., statement of Dev Singh dated 16.1.1996, he had witnessed the occurrence but no explanation why matter was not reported to the police immediately. Dev Singh firstly appeared before the Court of JMIC, then in the Court of Session, but statements in the Courts are contrary to statement (Ex.DA). No explanation from the side of prosecution as to whether occurrence was witnessed by Lachhman Singh and Baldev Singh or by Dev Singh alone. Defence version of appellant was that he along with his brothers and some other persons on a tractor trolley was coming from the side of Village Devigarh after purchasing some articles to celebrate lohri. When they were in the area of Village Dudan Sadan, then noticed number of persons collected there. Hans Raj was one Crl.Appeal No.215-SB of 2002 18 of them. On the request of Hans Raj, tractor trolley was stopped. Dead body was found lying on the road, which was found to be of Babu Ram, r/o Village Malimajra. On the request of Hans Raj, dead body was loaded in the trolley and brought to the house of Babu Ram (deceased). Tractor trolley was left near the house of the complainant. According to the prosecution story, Hans Raj along with some other persons including the appellant had gone to the house of complainant at 2.00 AM and reported that they have brought dead body of Babu Ram in the trolley of Kulwant Singh. Tractor trolley was left near the house of the complainant but Hans Raj was not produced to state that he had not brought the dead body of Babu Ram in the tractor trolley of Kulwant Singh or he had not requested the appellant while coming from the side of Village Dudan Sadan to shift the dead body of Babu Ram from the place of occurrence to his village.
Lachhman Singh in his statement (Ex.PL) stated that on 12.1.1996, Babu Ram was taken away by Kulwant Singh but in Court stated that wife of Babu Ram told that Babu Ram was taken away by the appellant. Wife of Babu Ram was not produced to state that she was present in the house when appellant came and her husband Babu Ram had gone with the appellant.
As discussed earlier, as per one version, Dev Singh had witnessed the occurrence, but he did not report the matter to the police. After leaving dead body on the spot, he had gone to his relations. Statement of Dev Singh in Court is contrary to his statement (Ex.DA) made before the police. Second version of prosecution was that occurrence was witnessed by Lachhman Singh and Baldev Singh. If Babu Ram was taken away by the appellant and the appellant was seen while driving tractor and at that time Crl.Appeal No.215-SB of 2002 19 one person was seen under the tractor, then there was no idea not to visit the place of occurrence and return to their village. If the occurrence was witnessed by the above said two persons and they had heard shrieks of one person, then Lachhman Singh could easily identify that shrieks of his brother Babu Ram. In that case, he was expected to visit the place of occurrence and not to return to his village.
When there are two versions, then the version favourable to the accused is to be accepted. Defence version seems to be reasonable and probable.
Impugned judgment is to be set aside if the same is perverse and against facts and law. All discussed above shows that evidence on the file was not properly scrutinized by the trial Court. Impugned judgment is set aside. Appellant is acquitted of the charge levelled against him.
Appeal is accepted.
11.8.2010 ( JORA SINGH ) pk JUDGE