1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Appeal No.298 of 2000 Abdul Hafiz son of Sheikh Jumma, aged about 29 years, residentof Badi Masjid, Akot, Distt. Akola. .... Appellant. Original Accused No.1. Versus The State of Maharashtra, through Police Station Officer, Kondhali Police Station, Distt. Nagpur. .... Respondent. ***** Mr. Junaid Ahmed, Adv., for the appellant. Mr. B.M. Lonare, Additional Public Prosecutor for the respondent. ***** CORAM : A.H. JOSHI AND U.V. BAKRE,JJ. Reserved on : 11th July, 2011. Pronounced on : 14th July, 2011. 2 ORAL JUDGMENT [Per A.H. Joshi, J.]: 1. The appellant and other three accused were charged for commission of offences punishable under Sections 323, 326 and 302 read with Section 34 of Indian Penal Code for causing hurt, grievous hurt to Gurudeosingh son of Sampurnasingh, Driver of Truck No. MWY-4336, and murder of said Gurudeosingh. 2. It is a case of scuffle, followed by killing Gurudeosingh by running over him the truck. 3. To prove its case, prosecution has examined following witnesses:- 1. PW 1 -Tukaram Gotmare. …. Panch. 2. PW 2 -Milkayatsingh Sampurnasingh Bal. …. Not eye-witness. 3. PW 3 -Sonba Patil …. Panch. 4. PW 4-Ismail Khan Rahman Khan. …. Eye-witness. 5. PW 5 - Eknath Gomaji Gajbhiye. …. Hostile witness. 6. PW 6 - Amrik Singh Prem Singh. …. Not the witness of incident. 7. PW 7 - Bhimrao Sampat Raole. …. Eye-witness. 8. PW 8 - Chandrakant Pralhad Jajoo.…. Naib Tahsildar who conducted Identification Parade. 3 9. PW 9 - Damodar Badiaye. … ASI who brought assailants to Police Station. 10. PW 10 -Dr. Pradeep Gangadhar Dixit. … Medical witness who conducted Post-mortem examination. 11. PW 11 - Ramnath Awasthi. …. Investigating Officer. 4. Heard both parties. Perused the record. 5. It is seen that case rests on testimonies of only two eye-witnesses – PW 4 – Ismail Khan and PW 7 – Bhimrao S. Raole. Versions of these witnesses are divided into two parts, namely [1] quarrel and scuffle, and [2] the act of running over Gurudeosingh by the truck. 6. The relevant portion of the testimony of PW 4 – Ismail Khan reads as follows:- “1. .......................................... .........We then stopped at Sardarji Dhaba Kondhali, for meals. We then started from Dhaba, around 12.45 a.m. After covering a distance of 4/5 kms., one truck came from opposite direction, and dashed our truck. That truck was coming from Nagpur direction, and was bearing the number MHV 7898. Our truck, as well as that truck, stopped, after a short distance. The dash was given from the rear driver side of our truck, because of which the front of our truck got damaged. The driver of MHV 7898 called our driver Gurdev Singh. I also accompanied him. There was exchange of abuses between them. In the meantime, another truck of the same owner came from Nagpur direction, and stopped 2/3 steps ahead of that truck. Its number was MTV 2454. Driver of MHV 7898 called out the driver of that truck as 'Hafeez bhai, you came here'. However, the said driver did not get down from the truck. Therefore, the driver of MHV 7898 4 took Gurudev Singh near the said truck, and then the driver of MTV 2454 got down. The three of them, i.e., our driver, and drivers of the other two trucks stood in front of MTV 2454. There was exchange of abuses between them. And scuffle took place between them. Driver of MTV 2454 took out the iron rod from his truck, and inflicted its blows on Gurudev Singh. I caught hold of that rod, and kept it in my truck. The driver who dealt blows by iron rod on Gurudevsingh is the accused no.1 present before the Court . (wit. pointed to the accused 1 in the dock). Besides us, the conductors of the two trucks were also present, there at that time. They are accused 2 to 4 present before the Court. They also beat Gurudev Singh, by fist, kick blows.” “2. Thereafter accused No.1 boarded his truck No. MTV 2454, started it, pushed down Gurdev Singh on the road, and ran over his truck over his waist and limbs, and fled away towards Amravati by his truck. Gurdev Singh sustained bleeding injuries, and started got in pains. Driver of the other truck 7898 also fled away in that truck towards the bushes. We were near Gurdev Singh, who in pains moved towards the grass, by the side of road, and died. The driver of truck no. 7898 returned after some time, and while he was attempting to start his truck, I went there, snatched the keys and papers from him, and he ran towards Amravati by taking lift in another truck.” [Quoted from page nos. 97, 99 and 99 of the appeal paper-book]. 7. The defence could not elicit anything useful. Hence it is not necessary to exert on referring to the cross-examination of PW 4. 8. In so far as PW 7 – Bhimrao is concerned, his version reads as follows:- “2) Around 12.00 night on account of our truck being dashed I got awakened. Another truck was standing by the side of road. Our truck got damaged. The other truck was facing towards Amravati. Its number was 7898. I, Gurdeo Singh, Ismail got down from our truck, and proceeded 5 towards the stationary truck. There was quarrel, between our driver and driver of that truck. In the meantime, another truck MTV 2454 came from Nagpur side, proceeding towards Amravati, and driver of that truck stopped there. Driver of the first truck called out, as Hafeez Bhai Idhar Aao. The driver Hafeez along with four/five persons came near us, and assaulted our driver Gurudeosingh. Accused Hafeez was carrying an iron rod, and assaulted Gurdeosingh by it. Ismail caught hold of that rod.” “3) Hafeez bhai then started his truck, and ran it over the body of Gurudeosingh. At that time Gurdeosingh was laying on the road. The accused then proceed with the truck, towards Amravati. Gurdeosingh sustained bleeding injuries, and after fifteen minutes, he expired. The driver and conductor of the other truck, concealed themselves in the bushes. We then tried to stop the ongoing vehicles, but they did not stop. One police jeep came there and I sent Ismail in it, while I remained on the spot, near the vehicle.” [Quoted from page nos. 105 and 106 of the appeal paper-book]. We have perused the cross-examination of PW 7. Nothing beyond suggestions is given and nothing useful for the defence is elicited. 9. Now the limited questions, which this Court is required to decide in this appeal, are :- [i] Whether the prosecution has proved beyond a shadow of doubt the act of accused no.1 in causing homicidal death of victim Gurudeosingh? [ii] Whether the homicidal death is liable to be classified as a culpable homicide amounting to murder, or does it fall in the category of any other offence? 6 10. As it is seen from second part of testimonies of PW 4 as well as PW 7 quoted in foregoing paras, the picture, which is emerging vividly, can be summarized and reiterated as follows:- [a] After the accident, the scuffle began. [b] There was a free fight. [c] Followed by it, Accused No.1 boarded his truck, started the engine, and ran it over the victim Gurudeosingh. 11. The above noted emergence is not brought into a shadow of doubt by exerting to blur it, or otherwise destroy it. 12. Learned Adv., for the appellant tried to exert and tried to bring the case within the compass of Section 304 Second Part of Indian Penal Code, urging that it would be a case of grave and sudden provocation, free fight and excess of defence. 13. All these submissions of learned Adv. Mr. Ahmed turn out to be bare arguments, as there is no factual foundation thereto, in order to shake the testimonies of witnesses, ensured or elicited through cross-examination or brought before the court through some defence evidence. 14. In order to substantiate his contention, learned Adv., for the appellant has placed reliance on the reported Judgment of Hon'ble Supreme Court in case of Kaur Sain Vs. State of Punjab [AIR 1974 SC 329 (V 61 C 64)]. 7 15. We have perused the said reported judgment. It is not worthy to exert to discuss about the judgment. It is completely besides the issue involved in the case. 16. In so far as the aspect of running over the vehicle is concerned, it is duly proved. 17. In so far as intention to commit the murder is concerned, there lies some scope of debate. 18. As far as aspect of knowledge is concerned, there is no room for a debate, inasmuch as the accused-driver by occupation is bound to know what happens if a truck is run over somebody's body. 19. In so far as the aspect of intention is concerned, the intention to kill will have to be gathered from testimonies of witnesses. As noted earlier, there are only two witnesses. All that these two witnesses narrate is that the scuffle occurred and followed thereby the accused no.1 has run the truck over the victim, however, the evidence does not contain any mention of words spoken, or otherwise, which would disclose that the act of running over the body of deceased by the truck was aimed at and intended for killing him. 20. Something more than knowledge is required to be proved by the prosecution to prove the intention to kill. From the evidence led by the prosecution, it is seen 8 that the prosecution wants the Courts to believe that the act was intentional, but without any material and evidence, whatsoever. 21. The law does not create a presumption of intention. It is a matter of fact and it is to be proved. 22. In the present case, by virtue of nature of facts, knowledge can be presumed, but not the intention. 23. In the result, we have reached a conclusion that the prosecution has succeeded in proving the knowledge about the consequence of the act in so far as Accused No.1 is concerned, however, prosecution has failed to prove intention to commit murder. 24. In the result, the case comes in the category of offence punishable under Section 304 First Part of Indian Penal Code. 25. Heard parties on the point of sentence. Learned Adv., Mr. Ahmad prays for lenience. 26. We, in the result, partly allow the appeal and modify the conviction against Accused No.1 – appellant to Section 304 First Part of Indian Penal Code, and direct that the sentence shall be for ten years' rigorous imprisonment and a fine of Rs. 6,000-00 [rupees six thousand only], and a sentence of rigorous 9 imprisonment for six months in the event of failure to pay the fine. JUDGE JUDGE -0-0-0-0- |hedau| 10