JUDGMENT
V.G. Palshikar, J.
1. Being aggrieved by the judgment and order of conviction recorded by the learned Addl. Sessions Judge, Raisinghnagar, District Sriganganagar in Sessions Case No. 56/ 92, the appellants Mukhtiar Singh, Khanda Singh, Onkar Singh, Mahendra Singh, Pritam Singh and Joginder Singh have preferred this appeal on the grounds mentioned in the memo of appeal as also on the grounds canvassed before us during the course of arguments. Accused appellants were sentenced to imprisonment for life and fine of Rs. 100/- for offence Under Sections 302/149, I.P.C. and for the offence Under Section 147, I.P.C., they were fined with Rs. 1000/- and in default, simple imprisonment for one month.
2. With the assistance of the learned counsel for the accused and the learned P. P., we have.re-appreciated the evidence on record and have scrutinised the entire record and heard the learned counsel for both parties.
3. Stated briefly the story of the prosecution is that on 15-6-92 at about 5 in the evening, the deceased Jagtar Singh and Gurmeet Singh were going on motor cycle when the accused persons riding a blue tractor of Ford company collided the tractor with the motor cycle and crushed them under the tractor. This First Information Report (F.I.R.) was lodged by the police on the basis of the information verbally shouted to the police by the son of the deceased Baldeo Singh P.W.1. On the basis of this report, investigation was carried on by the police and ultimately challan against the accused persons as named in the charge sheet, was lodged. The prosecution examined 9 witnesses to prove its case. Of the 9 witnesses, 2 are eye witnesses and the others are mostly witnesses from the police and all other witnesses involved in the investigation. The prosecution story as narrated by P.W. 1 Baldeo Singh in Court is that he and his brother Gurdeo Singh P.W. 2 were going towards the village when Gurmeet Singh and his father were going by the motor cycle towards the village and a blue tractor was coming towards them and the accused persons were sitting in the tractor, which was driven by Khanda Singh. They dashed the tractor against the motor cycle of Gurmeet Singh and as a result of which, both Gurmeet Singh and Jagtar Singh fell on the ground and the accused appellants crushed them the tractor 2 or 3 times driving the tractor. The witness has admitted rivalry between the parties and he has executed several documents (Ex. P/2 to Ex. P/15).
4. The learned Addl. Sessions Judge on appreciation of the evidence of these witnesses, came to the conclusion of guilt and accepting this conclusion, sentenced the accused persons imprisonment with life for various offences as mentioned above. It is this order, which is impugned in this appeal by the learned counsel for the accused on several grounds. The grounds, which have been stated briefly are: (a) admittedly according to the eye-witnesses, the incident has occurred in broad day light near bus stand of village Sameja Kothi at around 5 p.m., no independent witness from near the scene of occurrence is examined nor is there any statement, that no such witness was available either by the Investigating Officer or by any eye witness, who was present and, therefore, decision on the testimony of any two witnesses, who are directly and closely related to the deceased, is grossly unsafe for recording conviction. (b) The evidence of the so called eye-witnesses is untrustworthy and serious contradictions exist in the deposition and the police record and consequently, these witnesses cannot be believed. (c) The evidence of the eye witnesses is again falsified by the medical evidence on record and, therefore, these eye wit nesses are liable to be disbelieved. (d) The conduct of the eye witnesses who are direct relations of the deceased, is so unnatural that their testimony deserves no credence at all. (e) Consequently, there is no evidence on the basis of which it can be said that these accused persons have been responsible for homicidal death of Gurmeet Singh and Jagtar Singh. The learned counsel, therefore, prayed for acquittal of the accused persons.
5. The learned P. P. on the basis of testimony of P.W. 1 Baldeo Singh and P.W. 2 Gurdeo Singh claim that the order of conviction is proper and is liable to be maintained. Even though there may be some contradictions in the testimony of the eye witnesses, they are not such as would render the prosecution unbelievable. On the overall appreciation of the evidence on record, it is necessary to maintain the order of conviction.
6. As aforesaid, we have heard the learned counsel for the parties and we have rescrutinised the record and reappreciated the evidence. P.W. 1 Baldeo Singh is son of deceased Gurmeet Singh and grandson of deceased Jagtar Singh. He has deposed that while he was going to village Sameja Kothi, the deceased persons riding on a motor cycle came near him and told him to follow them. When the deceased persons went, he saw a blue coloured Ford tractor being driven by one Khanda Singh on which the other accused persons whom the witness claims in his examination-in-chief, were riding. The tractor dashed against the motor cycle and Gurmeet Singh and Jagtar Singh fell to the ground. The witness then states that thereafter the other accused persons got down from the tractor and encircled the befallen victims preparing to run from the scene of occurrence. It is then alleged that Khanda Singh so manoeuvred the tractor as to over-run the deceased persons twice or thrice. The witness has deposed that he saw the incident hiding behind some bushes. The witness then deposes
^^esjs firk o nknk dks tks Hkkx
jgs Fks Hkkxus dh dksf’k’k dj jgs Fks mudks VsªDVj ls ihNk djds VsªDVj dk vkxk
ihNk djds Hkkxus ugha ns jgs Fks vkSj VsªDVj muds Åij p<k;k Fkk tks VsªDVj
muds Åij nks rhu nQk p<k fn;k Fkk A*
The witness has also given very good description of the strained relations between the parties, he was extensively cross examined on behalf of the accused. In the cross-examination, the witness has stated that none of the accused persons had any arms with them. The witness has stated in the cross-examination thereafter that the incident lasted for about 10 mintues, the motor cycle was crushed. The witness was hiding behind the bushes and after the accused persons left the scene, the witness went to the police outpost and shouted the occurrence. The witness is, thus, unequivocal in his statement that the deceased persons were crushed under the tractor wheels by the occupants of the tractor with the intention of causing their death. Several contradictions have been brought out by the defence counsel in the evidence of this witness.
7. It is pertinent to note that the witness who was about 21 years old at the time when the incident occurred, claims to have seen the assault of murderous nature of his father and grand father and continued to hide without rushing to the aid of his parents, for which he has no reasonable explanation. The only explanation is of fear. The conduct of this witness is so strange when he states that after the accused left the scene of occurrence, he shouted the information to the police and went to inform his mother about the injuries caused without bothering to assist his parents. It is the natural conduct of every person to assist the injured persons by providing medical aid at the first instance. Failure on the part of the witness to do so, raises, therefore, a very serious doubt regarding the presence of this witness at the scene of occurrence. It is unbelievable that a son would leave his father and grand father to lay seriously injured and not giving them any medical aid and instead would go home to tell his mother. Serious doubt, therefore, would arise in the mind of any reasonable prudent man regarding truthfulness of the statement of this witness regarding his presence at the place of occurrence as also to the statement made by him in regard to the occurrence.
8. To the same effect is the testimony of P.W. 2 Gurdeo Singh. This witness was accompanying P.W. 1 Baldeo Singh when they saw the assault. He has stated that a blue Ford tractor came from the front side, which was drivern by Khanda Singh and the other accused persons were sitting. According to this witness, when the tractor dashed against the motor cycle, which was being driven by the father of the witness, as a result of the dash so given, the persons fell down. This witness states
^esjs firk o esjs nknk ds ?ksjk
Mky fn;k fQj [k.Mkflag tks VsªDVj pyk jgk Fkk VsªDVj ls esjs firk o esjs nknk
ds Åij ls VsªDVj ls pDdj yxk;k esjs firk o esjs nknk us Hkkxus dk iz;kl fd;k
ysfdu esjs firk o esjs nknk dks eqyfteku us idM+ idM+ dj VsªDVj ds uhps ns fn;k
A*
The statement that ^^eqyfteku us idM+ idM+ dj
VsªDVj ds uhps ns fn;k** is a definite improvement of P.W. 1 Baldeo Singh, who made this improvement in the cross examination. According to the statements of these two witnesses, therefore, the murder of the deceased persons was caused by the accused persons by overrunning these persons by the tractor. It is the positive allegation made of over running by the two eye witnesses and it is this evidence, which weighed with the learned Addl. Sessions Judge in coming to the conclusion of guilt.
9. Our finding in regard to P.W. 1 Baldeo Singh apply mutatis mutandis to this witness also. His conduct was unnatural in not giving first aid to his dying parents and instead going home to inform the mother. Serious doubt, therefore, arises in regard to the presence of this witness also.
10. P.W. 3 Sohan Lal has been declared hostile. P.W. 4 Uttam Singh is a Panch witness and P.W. 5 Smt. Gurdayal Kaur is wife of deceased Gurmeet Singh and she says that she heard the incident from P.W. 1 Baldeo Singh and directed him to lodge the report in police station. P.W. 6 Mani Ram was working as In-charge of police station, Sameja Kothi, tehsil Sriganganagar and he states that on 15-6-92 he heard the shouts of Baldeo Singh saying that Mukhtiar Singh and others are causing injuries to his father and grand father by tractor and then according to the witness, Baldeo Singh ran away. Thereafter the witness reached the scene of occurrence and found the deceased persons lying injured but alive. He, therefore, arranged for their despatch to hospital in Raisinghnagar. Relying on the statement of this witness P.W. 6 who has very positively said that the accused persons are causing injuries to the deceased.
^^eq[r;kjflag vkfn esjs firk o
nknk dks VsªDVj ls pksVsa igqapk jgs gSaa A*
it was canvassed by the learned counsel for the accused that there is material change in the testimony of the witness when Baldeo Singh says that he went and shouted before the police outpost only after the accused left the scene of occurrence. It was very strongly pointed out that if he would be present on the scene of occurrence, he would not have said ^pksVsa igqapk jgs gSaa A*
According to the learned counsel, this renders the presence of the witness doubtful. We are unable to agree with this statement. The contradiction, if any, is very minor and the witness could have slipped any word, he has said in the circumstances, in which he was shouting. Factually, in our opinion, nothing remains to doubt what was shouted by P.W.I.
11. However, the prosecution must positively prove that the death of Gurmeet Singh and Jagtar Singh was caused by the accused only and such contradictory statement, even if it is made becomes inconsequential by the context of the circumstances in which they were uttered. P.W. 1 Baldeo Singh and P.W. 2 Gurdeo Singh have consistently and persistently stated that their father and grand father were crushed under the tractor. We have perused the record and the photographs of the scene of occurrence of the dead bodies. There are no crush marks on the bodies. The photographs of the scene of occurrence do not reveal any such mark on the ground as would be seen on crushing of a body under the tractor wheels. If the prosecution story of the manner in which the killing took place, is the trustworthy, rest of the evidence becomes irrelevant for the purpose of fastening guilt on the accused.
12. In this connection, it is worthwhile to refer to the statement of P.W. 7 Dr. Prithviraj Bansal. The doctor has said in his cross-examination in unequivocal terms that
^VsªDVj ls fdlh dks dqpyk tk;s ,sls
esa tks pksVsa vkrh gSa oks etcwjku ds vkbZ gqbZ pksVs laHko ugha gSa A*
In view of this statement of the doctor, the entire deposition of PW 1 and P.W. 2 that the deceased were crushed under the wheels of the tractor becomes wholly unreliable. If the testimony of these two witnesses is excluded, then there remains no evidence on record on the basis of which conviction of the accused can be sustained.
13. There is no evidence on record to exclude the presence of any independent witness to support the allegation that the offence was committed at 5 p.m. in the evening near the bus stand of village Sameja Kothi. It is not possible for us to believe that the incident might have occurred as alleged by P.W. 1 and P.W. 2 and none in the vicinity was aroused by the commotion and none had seen the incident as it occurred. The possibility of the case being one of hit and run cannot be overruled. According to the eye witnesses P.W.1 and P.W. 2 for about 10 minutes, the deceased were encircled by the accused persons, which prevented their escape and were overrun by the tractor and still there is no passer-by or witnesses from the near by vicinity to see the occurrence. It is also pertinent to note from the testimony of P.Ws. 1 and 2 that the incident was going on for about 10 mintues and positive assault was made by over running the tractor, they were encircled for that purpose by the accused persons, the witnesses did not shout even once for help. This is natural conduct of any human being to shout for help when such assault is made on the person. However, in cross-examination, the witness has said thus,
^^bl 10&15 feuV ds nkSjku ge
fpYyk;s vkt [kqn dgk fd ge Mj ds ekjs ugha fpYyk;s gekjs firk o nknk fpYykrs jgs
mUgksaus gesa uke ysdj vkoktsa nh Fkh gekjk uke ysdj gekjs firk o nknk cpkvks&cpkvks
dgrs jgs ge fQj Hkh ugha cksys A**
If this testimony is to be believed, then we have to presume that the deceased persons shouted for help. If such shouts for help were given for more than five minutes by the two persons facing death, it is highly impossible that they would not rush for their help and would stay to see as to what is happening and would not render any help. Presence of the natural witness to the occurrence was, therefore, obvious. Such possibility was liable to be overruled by the positive evidence coming forth from the prosecution. Failure on the part of the prosecution to prove clearly such evidence has, therefore, resulted in failure on the part of the prosecution to prove the incident as it has occurred. In such circumstances, particularly on the basis of medical evidence, we find it hard to believe the testimony of P.Ws. 1 and 2.
14. Our entire re-appreciation of the evidence on record raises serious and reasonable doubt with regard to presence of P.Ws.l and 2 at the scene of occurrence on the following reasons:-
(1) unnatural conduct of the witnesses in not raising alarm during the incident and also in not rendering any aid to the dying father and grand father even after the threat to death by the accused persons was removed; (2) Absence of any independent witness even though the incident has occurred near the bus stand in village Sameja Kothi at 5 in the evening; (3) Absence of crush injuries on the body of the deceased persons; (4) testimony of the doctor to show that the injuries as were caused to the deceased were not such as could have been caused by overrum of the tractor; (5) other material contradictions in the testimony of the witnesses alleged to be eye witnesses. In our opinion, existence of these circumstances narrated above, make a reasonable doubt in the mind of a prudent man regarding commission of the offence. We, therefore, do not find it possibleto maintain the order of conviction when such serious and reasonable doubts arise. In such a case, the benefit of doubt must go to the accused persons. The prosecution has failure to prove that the offence was committed by the accused only. The prosecution has failed to eliminate the possibility of the case being a case of hit and run by the persons unknown and, therefore, the conviction of the accused persons cannot be sustained.
15. In the result, therefore, the appeal succeeds and is allowed. The order of conviction is set aside. The accused be set as liberty, if not required in any other offence.