JUDGMENT
1. The appeal is directed against the judgment of the Additional Sessions Judge, Sikar convicting appellant Kishna Ram under Section 302, I.P.C. and sentencing him to imprisonment for life, with a fine of Rs. 1,000/-, in default of payment of fine, to further undergo 6 months simple imprisonment.
2. Briefly stated the prosecution case is that at about 2.00 am. on 18-8-1984, PW 10 Rameshwar Sharma appeared at Police Station, Sadar Thana, Sikar and presented a written report, Ex. P 14. It was stated there in that at about 10.00 p.m. on 17-8-1984 his wife Smt. Mohini aged about 35years along with his minor daughter aged about 2 years were coming from the house of Ratan Lal, where his wife had gone to participate in some function While they were returning the accused drove his truck and crushed Smt. Mohini Devi and her minor daughter. It was also alleged that PW 12 Smt. Pushpa was with Smt. Mohini. The incident was seen by PW 14 Pawan Kumar PW 15 Jhumar Mal and some other persons. It was further alleged in the First Information Report that the appellant and PW 10 Rameshwar were on inimical terms. The appellant had earlier threatened Rameshwar, PW 10 to kill some members of his family. The police registered a case under Section 302, I.P.C. and proceeded with the investigation. The post-mortem examination of the dead bodies of two victims was conducted. The reports are Ex. P1 and Ex. P 2. The accused was arrested and the truck was seized. After when the investigation was over, the police presented a charge sheet against the appellant and one Jhabarmal in the court of Judicial Magistrate, Sikar, who in his turn, committed the case for trial to the court of Sessions. The case came up for trial before the learned Addl. Sessions Judge He framed the charge under Section 302, I.P.C. against the appellant and under Section 302/34, I.P.C. against accused Jhabar Mal. Both of them denied the charges and claimed to be tried. In support of its case, the prosecution examined 17 witnesses and filed some documents. In defence, the accused examined 2 witnesses. On the conclusion of trial, the learned Additional Sessions Judge found no incriminating material as against accused Jhabar Mal to connect him with the deaths of two victims. He was consequently acquitted of the offence he was charged with. The learned Additional Sessions Judge however found the charge duly established against appellant Kishna Ram. Kishna Ram was, therefore, convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction, Kishna Ram has come up in appeal.
3. We have heard Mr. Jagdeep Dhanker, learned Counsel for the appellant and Mr. O.P. Sharma, learned Public Prosecutor. We have also gone through the case file carefully.
4. In assailing the conviction, it was vehemently contended by Mr. Dhanker that a case of death by rash and negligent act has been converted into that under Section 302, I.P.C. It was contended that the motive alleged does not stand proved and if at all it is taken as proved, it was wholly insufficient and inadequate to push the appellant to commit the murder of Smt. Mohini and her minor daughter.
5. It was on the other hand contended by the learned Public Prosecutor that looking to the relations between the appellant and PW 10 Rameshwar, it can safely be inferred that the appellant wanted to commit the murder of the family members of Rameshwar.
6. We have bestowed our thoughtful consideration to the rival submissions. There are 5 eye witnesses speaking about the incident; they are: PW 1 Kishore, PW 2 Dunga Ram, PW 12 Smt. Pushpa, PW 14 Pawan Kumar and Mal. We may point out at once that in Ex. P 1 lodged promptly after the incident, only the name of PW 1 has been mentioned. It is significant that the name of PW 12 Smt. Pushpa who is daughter of deceased victim Smt. Mohini has not been mentioned in it. It may also be pointed out at this place that the FIR was lodged by PW 10 Rameshwar who is none else but the husband of Smt. Mohini. Taking all these factors into consideration, the non-mention of the names of PW 1 Kishore Kumar, PW 2 Dunga Ram, PW 12 Smt. Pushpa and PW 15 Jhumar Mal in the FIR plays a significant role. We have also gone through the evidence of above five witnesses. What can be said on the basis of what they testified on oath is that the appellant was driving his truck No. RJV 2678 and the truck struck against Smt. Mohini, who was going ahead. Her minor daughter was in her lap. In these circumstances, what we can say is that the accused was driving the truck rashly and negligently, which had caused death of Smt. Mohini and her minor daughter. From what has been stated by the eye witnesses referred to above, we are unable to say that the death was caused intentionally by driving the truck over Smt. Mohini and her daughter by the appellant.
7. As regards the motive alleged by the prosecution it is hardly adequate. What has been stated by PW 10 Rameshwar is that FIR Ex. P. 47 was lodged against 5 persons including the appellant by one Mansa Ram of the RSEB. The case under Sections 353, 332, 379, I.P.C. was registered against the five persons. PW 10 Rameshwar stated that appellant suspected that his name has been mentioned in Ex. P/47 at his instigation. Even if we accept the statement of PW 10 Rameshwar at its face value on this point we are unable to satisfy ourselves that it could serve as motive to appellant Kishnaram to commit murder of Smt. Mohini w/o Rameshwar and her daughter. In our opinion a simple case under Section 304A, I.P.C. has been converted by the police into that under Section 302 I.P.C. We are, therefore, unable to maintain the conviction of appellant under Section 302, I.P.C. His conviction should have been made under Section 304A, I.P.C.
8. In the result, we partly allow the appeal of accused Kishnaram. His conviction and sentence under Section 302, I.P.C. are set-aside and instead he is convicted under Section 304A, I.P.C. and is sentenced to 2 years rigorous imprisonment with a fine of Rs. 15,000/-. The amount of fine if recovered will be paid to the legal representatives of the two deceased victims. The amount of fine will be recovered by the authorities under the Public Demands Recovery Act.
9. We may also add at this stage that it will be open to the legal representatives of the deceased victims Smt. Mohini and her minor daughter to make a claim under Section 110 of the Motor Vehicles Act, 1939, for recovering compensation against the appellant. It will be open to the Claims Tribunal under the Motor Vehicles Act to condon the delay taking the fact in to consideration that the offence under Section 302, I.P.C. has been converted into that under Section 304A, I.P.C. by us today. Accused appellant Kishnaram is in jail. In case he has served out the full term of his sentence he will be immediately set-forth at liberty, if not wanted in any other case.
10. The appellant is allowed 3 months time to pay the amount of fine, failing which recovery proceedings will be initiated against him.