Kishan Ram vs State of Rajasthan

D.L. Mehta, J.—This appeal is directed against the judgment of the Additional Sessions Judge, Sikar convicting appellant Kishna Ram u/s 302 Indian Penal Code, 1860 and sentencing him to imprisonment for life, and with a fine of Rs. 1,000/-, in default of payment of fine, to further undergo 6 months'' simple imprisonment.

Brief y stated the prosecution case is that at about 2.00 a.m. on 18-8-1984, PW 10 Rameshwar Sharma appeared at Police Station, Sadar Thana, Sikar and presented a written report Exh. P-14. It was stated therein that at about 10.00 p.m. on 17-8-1984 his wife Mohini aged about 35 years 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 Mobini and her minor daughter. It was also alleged that PW 12 Pushpa was with Mohini. The incident was seen by PW 14 Pawan Kumar, PW 15 J. Kumar Mal and some other persons. It was further alleged in the first Information Report that the appellant and PW 10 Ratneshwar were on inimical terms. The appellant had earlier threatened Rameshwar, PW 10 to kill some members of his family. The police registered a case u/s 302, Indian Penal Code and proceeded with the investigation. The post-mortem examination of the dead bodies of two victims was conducted. The reports are Exh P-l and Exh. P-2. The accused was arrested and the truck was seized. After the investigation was over, the police presented a charge-sheet against the appellant and one Jhabar Mal in the court of Judicial Magistrate, Sikar, who in 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 u/s 302, Indian Penai Code against the appellant and under Sections 302/34, Indian Penal Code against accused Jhabar Mai. 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 outset. Aggrieved against his conviction Kishna Ram has come up in appeal.

We have heard Mr. Jagdeep Dhankar, learned Counsel for the appellant and Mr. O.P. Sharma, learned Public Prosecutor. We have also gone through the case file carefully.

In assailing the conviction, it was vehemently contended by Mr. Dhankar that a case of death by rash and negligent act has been converted into that u/s 302, Indian Penal Code. 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 Mohini and her minor daughter.

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.

We have bestowed our thoughtful consideration to the rival submissions. There are 5 eyewitnesses speaking about the incident; they are: PW 1 Kishore, PW 2 Dunga Ram, PW 12 Pushpa, PW 14 Pawan Kumar and PW 15 Jhumar Mal. We may point out at once that in Exh. P-l lodged promptly after the incident, only the name of PW 1 has been mentioned. It is significant that the name of PW 12 Pushpa who is daughter of deceased victim 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 Mohini. Taking all these factors into consideration, the non-mention of the names of PW 1 Kishore Kumar, PW 2 Dunga Ram, PW 12 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 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 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 Mohini and her daughter by the appellant

As regards the motive alleged by the prosecution it is hardly adequate. What has been stated by PW 10 Rameshwar is that FIR Exh. P-47 was lodged against 5 persons including the appellant by one Mansa Ram of the R.S.E.B. The case Under Sections 353, 332, 379, Indian Penal Code was registered against the five persons. PW 10 Rameshwar stated that appellant suspected that his name has been mentioned in Exh. 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 Kishna Ram to commit murder of Mohini w/o Rameshwar and her daughter. In our opinion a simple case u/s 304A, Indian Penal Code has been converted by the police into that u/s 302, Indian Penal Code. We are, therefore, unable to Maintain the conviction of appellant u/s 302, Indian Penal Code. His conviction should have been made u/s 304A, Indian Penal Code.

In the result, we partly allow the appeal of accused Kishna Ram. His conviction and sentence u/s 302, Indian Penal Code are set aside and instead be is convicted u/s 304A, Indian Penal Code 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.

We may also add at this stage that it will be open to the legal representatives of the deceased victims Mohini and her minor daughter to make a claim u/s 110-A 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 condone the delay taking the fact into consideration that the offence u/s 302, Indian Penal Code has been converted into that u/s 304A, Indian Penal Code by us today. Accused appellant Kishna Ram 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.

The appellant is allowed 3 months time to pay the amount of fine, failing which recovery proceedings will be initiated against him.