IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.244-SB of 2001. Date of Decision : 22.11.2010. Kunda Singh ......Appellant Versus State of Punjab & another ....Respondents CORAM : HON'BLE MR. JUSTICE NAWAB SINGH Present:- Ms. Lisa Gill , Advocate, for the appellant. Mr. V.K. Jindal, Addl. DAG, Punjab for the respondent-State. NAWAB SINGH J.(ORAL) This appeal is directed against the judgment of conviction and order of sentence dated February 6th, 2001 passed by Additional Sessions Judge, Moga, whereby, Kunda Singh-appellant was convicted for the offence under Section 304 Part-II of Indian Penal Code and sentenced to undergo imprisonment for five years and to pay fine of Rs.1000/- with default stipulation in a complaint case filed by Major Singh (hereinafter referred to as 'the complainant') son of Jaswant Singh under Section 302 IPC. Major Singh father of Kunda Singh co-accused of the appellant was acquitted of the charges. 2. The allegations levelled in the complaint are that on August 27th, 1996 at about 7/7.30 PM, Major Singh-complainant (PW-1) along with Harnek Singh (PW-2) was going on his motor cycle from Moga to Talwandi Bangaria. His brother Jugraj Singh (deceased) was going on his motor cycle ahead of them. Meanwhile, tractor bearing No. PB04-7986 driven in a rash manner by the appellant came from behind and struck against the motor cycle. Major Singh-appellant's father was sitting on the mudguard of the tractor. Major Singh exhorted his son Kunda Singh-appellant to kill Jugraj Singh because they had previous enmity with him. Jugraj Singh fell down. He received multiple injuries. He was evacuated to Dr. Kaura's hospital at Moga. From there, he was referred to Dayanand Medical College, Ludhiana where he was declared brought dead. 3. In support of his complaint, complainant examined three witnesses viz. Harnek Singh (PW-2), Swaran Singh (PW-3) and Dr. Ashok Kumar (PW-4) besides himself appearing as PW-1. 4. The accused was examined under Section 313 of the Code of Criminal Procedure, to explain the incriminating circumstances appearing in the prosecution evidence. He denied his complicity and pleaded innocence. He stated that on the eventful day, that is, August 27th, 1996, on the statement of Major Singh, a case was registered against Darshan Singh under Section 304-A IPC for causing death of Jugraj Singh in a road accident. Later on, after consultation and confabulation, Major Singh-complainant filed the present complaint against him and his father Major Singh. It was also stated by him that Major Singh-complainant and Harnek Singh are relations. Harnek Singh was challaned, convicted and sentenced in a murder case in which his uncle Sukhdev Singh was a witness. The witnesses have deposed falsely against him. 5. In defence, Naresh Kumar (DW-1) Record Keeper to District and Sessions Judge, Faridkot was examined to prove FIR No.163 dated August 14th, 1979 registered in Police Station Sadar, Moga against Harnek Singh (PW-2) and the list of witnesses (Exhibit DE) to show that Sukhdev Singh uncle of Kunda Singh was the prosecution witness. Foja Singh, Assistant Sub-Inspector (DW-2) proved the First Information Report (Exhibit DA) recorded by him on August 28th, 1996 on the statement of Major Singh (Exhibit PX) against Darshan Singh under Section 304-A IPC for causing death of Jugraj Singh in a road accident. He also proved the statement of Harnek Singh (Exhibit DD) recorded under Section 161 Cr.P.C. 6. It is not in dispute that Jugraj Singh met with an accident with tractor No. PB04-7986 on August 27th, 1996 and on account of the injuries sustained, he died. 7. The solitary point for adjudication in this case is: whether the tractor was being driven by Darshan Singh or Kunda Singh-appellant? and whether it was an accident or it was intentional act of Kunda Singh-appellant to kill Jugraj Singh? 8. Learned trial Judge after evaluating the evidence held in paragraph No.22 of the judgment as under:- “In the present case, there are certain circumstances which are indicative of the fact that the intention of Kunda Singh to cause death of Jugraj Singh by striking his tractor with his motor cycle is not established beyond the shadow of doubt.” 9. A reading of the aforesaid observation would, therefore, go to show that learned trial Judge was of the opinion that there was no intention on the part of Kunda Singh-appellant to cause death of Jugraj Singh meaning thereby that it was a simple case of road accident. Since it was a road accident then at the most, it was a case of causing death by rash or negligent driving falling under Section 304-A IPC. 10. By examining Foja Singh Sub-Inspector- Investigator (DW-1) it has been proved by the appellant that on August 28th, 1996 Major Singh-complainant (PW-1) made his statement (Exhibit PX) which was signed by him and attested by Foja Singh. Major Singh while appearing in the witness box admitted the said statement but added that he never knew that a case was being registered against Darshan Singh. Foja Singh (DW-1) has also proved the statement of Harnek Singh (Exhibit DD), wherein also, it was stated by Harnek Singh that Jugraj Singh met with an accident with a tractor bearing No.PB04-7986 driven by Darshan Singh. Indeed, Darshan Singh was challaned for causing the accident but was acquitted by the learned trial Judge by judgment dated April 27th, 2000 because Major Singh did not support the prosecution. The complaint was filed by the complainant after ten days of the occurrence naming Kunda Singh to be the driver of the tractor. It was also stated by him that Kunda Singh after striking the tractor with motor cycle of Jugraj Singh, reversed the same and then again hit the motor cycle. 11. From the evidence of Foja Singh, it is proved to the hilt that at the first instance, complainant named Darshan Singh for causing the accident but after ten days, he changed the story and named the appellant as an accused. 12. In Hardeep Singh vs. State of Punjab 1993(3) Crimes 513, it was observed by the Hon'ble Supreme Court that where there are two versions at variance, one in FIR and other in complaint, benefit of doubt should go to the accused. 13. So far as reversing of tractor and hitting the motor cycle of the deceased by the appellant is concerned, the said statement of complainant was not believed by the learned trial Judge as was observed by him while scanning the evidence as under:- “The allegation that the accused reversed the tractor and tried to crush Jugraj Singh is not established beyond shadow of doubt and the witnesses are at variance in context to the said act of the accused.” 14. Harnek Singh (PW-2) had to settle old scores with Kunda Singh. Kunda Singh's uncle Sukhdev Singh was a witness against him in a murder case bearing First Information Report No.163 dated August 14th, 1979 in which he was sentenced to undergo imprisonment for life. In his statement before Foja Singh (Exhibit DD), he named Darshan Singh to be the driver of the offending tractor and not the appellant. The circumstances establishes that he was inimical towards Kunda Singh. There is no evidence on record to say that Investigator in any manner wanted to help the accused or had any animus against the complainant. No explanation worth the name has been put forth by the prosecution to probablise the latter version of Major Singh and to ignore the first one. It is obvious that the introduction of the appellant for causing the death of Jugraj Singh subsequently was an act of deliberation but without foundation. 15. For the reasons aforesaid, this Court is of the opinion that the complainant failed to bring the guilt home to the accused-appellant. Learned trial Judge over-looked the basic defect in the case of the complainant which goes to the very root and erroneously held the appellant to be guilty and convicted under Section 304 Part II IPC. The impugned judgment of conviction and order of sentence are not sustainable and are hereby set-aside. Resultantly, the appeal is accepted and the appellant is acquitted of the charge. Amount of fine imposed be refunded to the appellant, if it was deposited. (Nawab Singh) Judge 22.11.2010. SN