Indian Kanoon - Search engine for Indian Law

6. Assailing the award passed by the Tribunal, Sri Arun Kumar Shukla, who appeared on behalf of the appellant, submitted that from the charge-sheet, which was filed pursuant to the first information report lodged in respect of the incident, it appeared to be a case of murder simpliciter and not an accidental murder, therefore, the claim under the provisions of the Motor Vehicles Act was not maintainable. Attention of the Court was invited to the first information report lodged by Jameel Khan (the father of the deceased) as also to the charge-sheet. Relying on the said documents, the learned counsel for the appellant submitted that from the first information report, it appears that while the bus was moving two persons boarded the bus near Parolia village and they shot at the son of the informant which caused panic amongst the bus passengers. The driver of the bus thereafter stopped the bus and the assailants alighted from the bus and escaped. It was submitted that in the first information report there is no statement that there was any act of robbery/looting to which resistance was offered by the deceased (Naseem Khan), which made the robbers fire at Naseem Khan. Relying on the charge-sheet, the learned counsel for the appellant submitted that one Nirbhai son of Ram Prakash was charge sheeted by the police for an offence punishable under Sections 302/307 I.P.C. and that no case of any robbery/looting was registered by the police. It was thus submitted that since the intention of the assailants was only to commit murder, therefore, it was not a case of accidental murder or an accidental death arising out of the use of motor vehicle so as to confer jurisdiction on the Tribunal to award compensation on a claim under section 163-A of the Motor Vehicles Act.

"10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."

10. In the light of the law laid down by the apex court, in the instant case, what is, therefore, to be seen is whether from the evidence brought on record, it is proved that the death of Naseem Khan was as an incident of loot/ robbery/ dacoity, that is an "accidental murder", or "murder simpliciter". If this Court comes to a conclusion that it was a case of murder simpliciter that is, where the perpetrators of the crime had the intention of committing murder only, then, the claim under Section 163-A of the Motor Vehicles Act would not be maintainable. But, if this Court comes to a conclusion that it was a case of an accidental murder that is where the perpetrators of the act did not have any motive against victim but the death was a result of an act to ensure commission of another act of felony, while the vehicle was in use, then, the claim under Section 163-A of the Motor Vehicles Act would be maintainable.

12. The submission of the learned counsel for the appellant is that the story of robbery was not taken in the first information report; and the police, on investigation, found a case of murder and laid charge-sheet accordingly, therefore, the Tribunal fell in error by placing reliance on the testimony of Rakesh Chauhan, which had no value.

13. The above submission of the learned counsel for the appellant cannot be accepted, as it is well settled in law that a first information report is not a substantive piece of evidence, it could be used to contradict or corroborate its maker. It cannot be used as a substantive piece of evidence (vide Surjit Singh versus State of Punjab : 1993 Supp (1) SCC 208; State of M.P. Versus Surbhan: (1996) 9 SCC 46; Harkirat Singh versus State of Punjab: (1997) 11 SCC 215). In the instant case, the informant was not examined as a witness. Rakesh Chauhan, who was examined as an eye-witness, is not the author of the first information report. As no other person was examined either by the owner of the bus or by the Insurance Company to rebut the testimony of Rakesh Chauhan, there was no other admissible evidence to show that it was a case of murder simpliciter and not of accidental murder as an incident of loot/ robbery/ dacoity. In view of the above, the finding returned by the Tribunal that death occurred in an accident arising out of the use of the motor vehicle, cannot be faulted in the light of the decision of the Apex Court in the case of Rita Devi's case (supra). This court is, therefore, of the view that the claim was maintainable under Section 163-A of the Motor Vehicles Act. As there is no challenge by the learned counsel for the appellant to the quantum of the compensation awarded, the appeal fails and is dismissed. The interim order stands discharged.