1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) D.B. Criminal Appeal No.131/82 Harbans Singh & anr. vs. The State of Rajasthan (2) D.B. Criminal Appeal No.130/82 Mohan Singh vs. The State of Rajasthan under Section 374, Cr.P.C. against the judgment dated 23/3/82 passed by the learned Addl. Sessions Judge, Nagaur in Sessions Case Nos.1/1980 & 71/1980 respectively.. Date of Judgment: May 8th ,2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. REPORTABLE Mr. S.G. Ojha for the appellants in DBCr.Appeal No.131/82. Mr. M.K. Garg & Mr. Niranjan Singh for the appellant in DBCr.Appeal No.130/82. Mr. V.R. Mehta, P.P. for the State. 2 BY THE COURT( Per Hon'ble Mr.Tatia,J): D.B.CRIMINAL APPEAL NO.131/1982. This appeal has been preferred by the appellants Harbans Singh and Dilavar Singh who have been convicted by the court of learned Addl. Sessions Judge, Nagaur vide judgment and order dated 23.3.1982 passed in Sessions Case No.1/1980. The appellants Harbans Singh and Dilavar Singh have been convicted under Sections 304/34 IPC and 407, IPC and have been sentenced to undergo life imprisonment under Section 302/34, IPC and fine of Rs.500/- each, under Section 407, IPC, they have been sentenced to undergo five years' rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, they are to serve one year's rigorous imprisonment. One of the co-accused Mohan Singh who was khalasi in the truck in question and was with above two accused Harbans Singh and Dilawar Singh, was absconding, therefore, challan was filed only against the two appellants and they faced the 3 trial and have been convicted by the trial court. However, co- accused Mohan Singh was arrested subsequently and he faced the trial in Sessions Case No.71/1980 wherein accused Mohan Singh also has been convicted by the same court but by separate judgment dated 23.3.1982. Against this conviction, accused Mohan Singh has preferred D.B.Criminal Appeal No.130/1982 which is also decided by this common judgment. Facts of Sessions Case No.1/1980. Brief facts of the case are that on 29.11.1977 in the morning at 8 a.m. from the drivers of the trucks going towards Bikaner, an information was received by the Police Station, Nagaur that one dead body is lying on the road near the village Barani, upon which the Investigating Officer, SHO, Nagaur went to the place of incident and found the dead body of a man with his crushed head. With the help of villagers, the Investigating Officer tried to identify the body but it was not identified by the villagers. However, the body was sent for 4 post-mortem. A case under Section 304A, IPC was registered and investigation proceeded. During investigation, as per the prosecution, it was found that the deceased was Roop Chand who was vegetables trader of the city of Ajmer. His cousin brother Bool Chand was his partner. On 27.11.19777, Roop Chand's partner Bool Chand and Roop Chand hired a truck No. HRK 8555 through Ghanshyam Transport Company, Ajmer and loaded vegetables- tomatoes and onions in truck No. HRK 8555. At that time, accused Dilavar Singh represented himself as Sadul Singh and told his name Sadul Singh to Bool Chand and employees of M/s Ghanshyam Transport Company. According to the prosecution case, there were three persons with the truck; one owner of the truck, one driver and one khalasi. Roop Chand along with above three persons boarded the said truck HRK 8555 for Bikaner. When the truck reached at Pushkar, the axial of the truck broke down, then Roop Chand and Dilavar Singh came 5 back to Ajmer to purchase the axial. Roop Chand and driver of the truck stayed in the night at Ajmer. On the next morning, Roop Chand and Dilavar Singh asked Bool Chand to obtain axial for the truck, upon which, Bool Chand purchased axial and gave it to his brother Roop Chand (victim) and to Dilavar Singh(accused). Thereafter, according to Bool Chand, Roop Chand and the driver proceeded for Pushkar. Thereafter, body of the victim Roop Chand was found, as mentioned above. As per the prosecution, in fact truck HRK 8555 was found to be of Thakur Das, resident of Panipath (Hariyana). As per Thakur Das, he gave this truck HRK 8555 to one Mr. Kataria who was government contractor and the truck was engaged in government contract work by Mr. Kataria. His truck's token and other documents along with his son's driving licence were stolen, upon which he gave report to the city police of Panipath. The copy of the said report has been placed on 6 record as Ex.P.9. Thakur Das started efforts for getting the duplicate papers from the transport department. As per Thakur Das one Truck No. HYA 1291 was belonging to accused Dilavar Singh and Harbans Singh accused was driver of truck No. HYA 1291. As per Thakur Das his truck HRK 8555 never sent in the Rajasthan territory and his truck remained engaged in the government contract of Shri Kataria. As per the prosecution case, the number of truck HYA 1291 was changed to HRK 8555, obviously by the accused persons and they took this truck to the Ghanshyam Transport Company, Ajmer and obtained the job of transporting of the vegetables of Roop Chand and thereafter, the accused killed Roop Chand by throwing him from the said truck and thereafter, sold the goods of Roop Chand which were loaded in the truck. One Jeewat Ram was the Manager in the firm Ghanshyam Transport Company and he stated that on 27 or 28.11.1977, deceased Roop Chand took truck HRK 8555 7 through their firm Ghanshyam Transport Company. It was taken for transporting the vegetables to Bikaner. According to Jeewat Ram, the Manager of the Transport Company, accused Harbans Singh was the driver on the truck and accused Dilavar Singh was with Harbans Singh with the truck. The driver (Dilavar Singh)(actual name) of the truck told his name Sadul Singh. According to Jeewat Ram, on 28.11.1977, deceased Roop Chand with the truck driver Harbans Singh returned back to Ajmer and told him that axial of the truck broke down and, therefore, they came there to purchase the axial. In investigation, the Investigating Officer found that the truck HYA 1291 was given new number HRK 8555 by the accused and the accused obtained job of transporting vegetables of Roop Chand from Ajmer to Bikaner. Roop Chand also boarded truck with the accused-persons and in Pushkar, axial of the truck broke down and Roop Chand and driver of the vehicle Harbans Singh returned back to Ajmer and took 8 the axial and thereafter they proceeded and on the way, Roop Chand was thrown out by the accused-persons and he fell down and the head of Roop Chand was crushed by the wheel of the truck. The accused took the vehicle to Suratgarh and Bhatinda in place of Bikaner and sold the goods to the traders at Suratgarh and Bhatinda. In view of the above reasons, the charge under Section 302/34, IPC for committing murder by the three accused in furtherance to common intention, charge under Section 407 , IPC for criminal breach of trust, charge under Section 379, IPC for stealing the goods and because of destroying the evidence, charge under Section 201, IPC were framed. Since khalasi of the vehicle Mohan Singh was not found, therefore, challan was filed against these two appellants only. In the trial, the Addl. Sessions Judge, Merta framed the charges under Section 302 and in alternative under Sections 304/34, 407, 201 and 379, IPC. The accused denied the 9 charges and sought trial. In the trial court , the prosecution produced 20 witnesses and 47 documents in all, including the post-mortem report Ex.P.4 wherein cause of death has been shown as crushing injury on skull by heavy loaded motor vehicle. The accused persons were examined under Section 313, Cr.P.C., who stated that the accused-appellants have been wrongly implicated in this case. After trial, the trial court acquitted the accused from charge under Section 379 and 201, IPC and the appellants have been convicted under Sections 302/34 and 407, IPC. According to the learned counsel for the appellants, the appellants have been convicted only on the basis of the alleged circumstantial evidence and in fact there is no circumstantial evidence against the appellants. It appears that the trial court proceeded on certain assumptions and failed to appreciate that the prosecution even failed to establish that the goods in question were transported in truck No. HYA 1291 10 and the truck No. HYA 1291 was ever in possession of the accused-persons. The prosecution miserably failed to prove that who was the owner of the truck HYA 1291 and did not recover the said truck nor interrogated the owner of the truck HYA 1291 who was identified by the Investigating Officer and without theft of truck HYA 1291, if the owner of the truck himself has not given the said truck to Ghanshyam Transport Company, the goods in questions could not have been loaded in the truck for transportation to Bikaner by accused. There is no charge against the accused that they stole the truck No. HYA 1291. The prosecution miserably failed to prove that deceased Roop Chand or his partner Bool Chand hired the truck through Ghanshyam Transport Company or the accused- appellants were present when any truck was hired by deceased Roop Chand from Ghanshyam Transport Company. Whether truck no. HRK 8555 was in the ownership of Thakur Das also has not been proved by the prosecution, as no 11 documentary evidence has been produced by the prosecution or by Thakur Das about the ownership of the truck HRK 8555. It is also submitted that, admittedly, in the transport company, the name of driver has been mentioned as Sadul Singh, whereas appellants are Dilavar Singh and Harbans Singh. It is submitted that merely on the basis of the statements of the witnesses that they were present at the time of loading of the truck, without further corroborative evidence, in the facts of the case it will be absolutely unsafe to rely upon the statements of those witnesses who had full opportunity to see the accused persons before their identification and before trial. It is also submitted that it is highly improbable that if a person will be thrown out from the truck, then he may be crushed by some truck. It is also submitted that it is not clear whether the victim died due to the crush injuries caused by truck HRK 8555 or truck HYA 1291 or was crushed by any other vehicle. The investigating agency 12 itself initially registered the case under Section 304A, IPC and in fact it appears that the victim died in the accident and he was not in the truck in question. The learned counsel for the appellants also submitted that the witness PW-7 Karan Singh, the employee of firm Ghanshyam Transport Company and PW-11 Jeewat Ram, the Manager of the firm Ghanshyam Transport Company, materially improved their statements in the court from the statements which they gave during investigation. PW-7 Karan Singh, in his statement under Section 161, Cr.P.C., specifically stated that he does not know who was khalasi in the truck. He also admitted that he does not know why in his statement Ex.D.2, it is not mentioned that Roop Chand also boarded the truck. In his statement under Section 161, Cr.P.C.(Ex.D.2), he stated that he was not knowing Roop Chand and Karan Singh and had no occasion to see the body of the deceased after that alleged date when according to Karan Singh, he saw Roop 13 Chand in his transport company, therefore, it is unsafe to rely upon the statement of witness Karan Singh(PW-7) and Jeewat Ram (PW-11), who also contradicted his own previous statement and improved his statement to involve the appellants. The learned counsel for the appellants further vehemently submitted that when the appellants had no truck in their possession, then there cannot arise any question of their selling the goods to the trader at Suratgarh and Bhatinda. It is submitted that the identification was totally defective and the appellants were already shown to the witnesses as admitted by the prosecution witnesses. The learned public prosecutor vehemently submitted that the prosecution fully established all the circumstantial evidence and the trial court rightly convicted the accused- appellants. The learned public prosecutor also submitted that after some time, the khalasi in truck Mohan Singh was also 14 arrested and he faced the trial, in which he also has been convicted, however, his appeal (D.B.Criminal Appeal No.130/1982) has already been heard by this Court against his conviction by the trial court vide judgment of the same date,i.e. 23.3.1982. We considered the submissions of the learned counsel for the parties and perused the record. So far as finding of the trial court that Roop Chand died by the injuries suffered by him as shown in post-mortem report and he was found dead on the road near the village Barani is concerned, the appellants have not challenged the said finding, obviously in view of the reason that their plea is that they were not in the truck in question and, therefore, they cannot claim any knowledge how Roop Chand victim died. The post-mortem(Ex.P.4) report also shows that the victim died because of the injury on head which could have been caused by running heavy motor vehicle over the head of 15 the victim. Therefore, the finding of the trial court that victim died because of crush injuries, caused by heavy motor vehicle, deserves to be upheld. So far as commission of offence by these two accused- appellants is concerned, the conviction is based on circumstantial evidence only. It is settled law that circumstantial evidence must be trustworthy and the chain of circumstances must be established without break in any circumstance. In the present case, as ultimately presented by the prosecution, is that a truck which had NO. HRK 8555 was brought in the firm Ghanshyam Transport Company, Ajmer by the accused-persons and they took job of transporting of vegetables from Ajmer to Bikaner on the request of victim Roop Chand. Subsequently, it is the case of prosecution that , that truck was truck No. HYA 1291 and not HRK 8555. Neither the truck no. HRK 8555 nor truck no. HYA 1291 has been recovered. The investigating Officer interrogated the alleged 16 owner of truck HRK 8555, Thakur Das (PW-10) and then the Investigating Officer believed the statement of Thakur Das that truck HRK 8555 was engaged in some other job and was in possession of one Mr. Katariya. PW-10 Thakur Das stated that truck HYA 1291 was belonging to accused Dilavar Singh. NO enquiry was made by the prosecution about this fact but without any evidence believed that number of truck NO. HRK 8555 was changed to HYA 1291. Whereas the Investigating Officer Mehboob Khan (PW-5) stated that he came to know about the registered owner of the vehicle HYA 1291 before he proceeded for Punjab for further investigation. Thereafter, he stated that he did not enquire who was the owner of the truck HYA 1291. According to the statement of PW-5 Mehboob Khan, the Investigating Officer, he found entry of truck HRK 8555 at octroi post of Nagaur and he found that the truck never entered in Ajmer as per the entries in the octroi record. He also found entry of truck HYA 1291 in the record at 17 Kishangarh, therefore, as per the prosecution own case, truck HRK 8555 and HYA 1291, both with their own numbers, were in the State of Rajasthan and entry for these vehicles were found in the government record. In absence of the recovery of the truck which was used for carrying the goods from Ajmer to Bikaner and in absence of evidence about any of above trucks reaching in the hands of the accused and changing of number of truck, by them, no presumption can be drawn that which truck was hired by Roop Chand for transporting the goods. If the statement of Thakur Das is believed then his truck was engaged in another job in Hariyana State only and there is no evidence that truck HYA 1291 was ever stolen and its number was changed and was used as truck No. HRK 8555, then the accused persons cannot be connected with the crime, as the prosecution failed to prove that the accused were in possession of any of the two trucks, from either of which the offence might have been committed. It is not the case of the 18 prosecution that the accused might have brought any third vehicle in firm Ghanshyam Transport Company and took the goods of Roop Chand and Roop Chand for transportation to Bikaner. Earlier the Investigating Officer, Surendra Mohan (PW- 13) in his statement stated that offence was committed by the truck which had number HRK 8555 and subsequently it was found that those number were wrong and correct number of the truck were HYA 1291. He stated that the truck was belonging to Dilavar Singh accused. In cross-examination he stated that he did not enquire from the transport department about the owner of the truck No. HRK 8555 or truck No. HYA 1291. The prosecution, therefore, suppressed the important material evidence about the ownership of the truck HYA 1291 and failed to established that the truck HYA 1291 was belonging to accused Dilavar Singh, as stated by PW-12 Surendra Mohan. In absence of this material evidence, merely 19 on the basis of the statement of Thakur Das (PW-10), the owner of truck No. HRK 8555, it cannot be held that Dilavar Singh was the owner of the truck HYA 1291 or he was in possession of the truck on the relevant date. It will be worthwhile to mention here that Thakur Das (PW-10) in his cross-examination, admitted that even permit for the truck No. HRK 8555 was in the name of one Ishar Singh and the original document of HRK 8555 were not produced. Thakur Das (PW-10) in his examination-in-chief, stated that Dilavar Singh was owner of truck HYA 1291 but in cross-examination, admitted that he do not know who was owner of truck No. HYA 1291. In view of the above absolutely vague evidence that truck HYA 1291 was belonging to accused Dilavar Singh, it cannot be held that the prosecution proved any connection of accused Dilavar Singh with truck HYA 1291 or truck HRK 8555 or Dilavar Singh and other accused changed the number of HYA 1291 to HRK 8555. The prosecution itself contradicted 20 statement of PW-10 Thakur Das by producing evidence that from octroi check post, the truck HRK 8555 did not enter in the territory of the State of Rajasthan. In view of above, it appears that the evidence of PW-10 Thakur Das is absolutely unreliable evidence. So far as any truck was brought in the firm Ghanshyam Transport Company by these accused persons and was hired by Roop Chand is concerned, material evidence is evidence of PW-6 Bool Chand, who stated that he and his brother Roop Chand hired the truck from firm Ghanshyam Transport Company. At that time, Dilavar Singh told his name Sadul Singh. He had one driver and one khalasi Mohan Singh with him. He specifically stated that with the truck there were three persons, one owner, another driver and third khalasi, whereas case of the prosecution is that in the truck there were two drivers and one khalasi. As discussed above, by other evidence, the prosecution tried to prove that the owner 21 of the truck with which offence was committed, was Dilavar Singh and the prosecution failed to obtain the relevant trustworthy documentary evidence from the transport department about the ownership of the truck HYA 1291, then the prosecution shifted its case and projected that there were two drivers in the truck along with one khalasi. In cross- examination, PW-6 Bool Chand admitted that before that incident, he was not knowing the accused Dilavar Singh. If Dilavar Singh told at that time that he is Sadul Singh and it was not objected by PW-7 Karan Singh and PW-11 Jeewat Ram at that time, then PW-7 Karan Singh and PW-11 Jeewat Ram, employees of firm Ghanshyam Transport Company were also not knowing the person who were with the truck and who gave the truck on hire through them to victim Roop Chand. Apart from above, when Roop Chand was present in the Transport Company, whose goods were loaded in the truck, then why his signatures were not obtained by the transporting 22 company on any of the documents, remained unexplained. In view of the above evidence, it is very doubtful that these two accused persons gave their any vehicle to firm Ghanshyam Transporting Company for transportation of goods from Ajmer to Bikaner of deceased Roop Chand. Another circumstance is very8 important and that is that whether the deceased was last seen with the accused? As per the statement of Bool Chand (PW-6), the truck in which Roop Chand travelled, broke down at Pushkar and Roop Chand and appellant Dilavar came to Ajmer and stayed for night at Ajmer. Then they purchased axial of the truck. Therefore, as per the prosecution evidence, accused Dilavar Singh alone was seen last with the victim Roop Chand and that too at Ajmer. At that time, the accused Harbans Singh and Mohan Singh were not with him. From Ajmer, after taking axial, Roop Chand and Dilavar Singh both went to Pushkar, there is no evidence. The trial court presumed that they must have went 23 to board the truck in which Roop Chand loaded the goods. The prosecution also produced the evidence with respect to the selling of the goods by the accused at Suratgarh and Bhatinda. PW-20 Jagdish Kumar stated that about four years back, both the accused-appellant brought the onions at Bhatinda and sold the onions through him. The goods were in truck No. HRK 8555. The goods were sold on 30.11.1977, 3.12.1977 and on 4.12.1977. He also produced the books of accounts showing the entries of selling of the onions in question. He paid sale price of the onions to Harbans Singh and obtained his signatures on Ex.P.52 and paid part of the sale price to Dilavar Singh and obtained his signatures on Ex.P.38. In cross-examination, PW-20 Jagdish Kumar admitted that the accused were not got identified either by the police or before any Magistrate. He stated that the police brought the accused to their shop and shown the accused to witness PW-20 Jagdish Kumar. As per the statement of PW-20 Jagdish 24 Kumar, the accused-persons were not regular customers of PW-20 Jagdish Kumar and they were brought in the shop of said PW-20 Jagdish Kumar by the police and, therefore, on this testimony of PW-20 Jagdish Kumar, it is unsafe to hold that the accused-persons were the persons who sold the goods on 30.11.1977, 3.12.1999 and 4.12.1977 through the witness PW-20 Jagdish Kumar. PW-15 Narayan is a trader of goods. He stated that two persons, present in court(accused) brought the tomatoes in a truck and they told that their vehicle broke down, therefore, they are in hurry, therefore, they wanted to sell tomatoes. They told that they brought tomatoes from Ajmer. They sold tomatoes at the market rate. He produced the books of accounts to show the entries of said transaction. In cross- examination he admitted that he had no knowledge how much persons were in the truck. He further admitted that he is illiterate and know only to sign. He cannot read the writing in 25 the books of accounts produced by him. He further admitted that before that day, he did not saw the accused and the accused were not got identified by them by the police or before any Magistrate and the police straight way brought the accused to his shop. Obviously because of that reason, he stated that those persons brought the tomatoes to his shop.