M.M. Gupta, J.
1. This appeal presents a picture of grim tragedy in which fourteen persons lost their lives and five were injured. The scene of tragedy in this case was Fatehpur-Shithaura Road. At about midnight between 14th and 15th Sep., 1975 people going for Ganges bath, which was to take place on the following morning, were either sleeping on the roadside Patri or were busy in spending the night in singing and merrymaking. At about 00.30 hours a truck came rashly at a very high speed from Fatehpur side. It crushed Ram Khelawan and Inder who were sleeping on the Patri of the road. After their being overrun by the truck there .vas a hue and cry and alarm raised by the people present there. The people at. the culvert who were busy in singing on Dholak got alarmed and took their position in the middle of the road. They all signalled the truck (driver) to stop the truck. The truck driver paid no heed to it and overrun them all killing nine of them, namely Chhiddu, Prahlad, Ram Raj, Virendra, Dev Dutt, Chhadammi Prasad, Lakshman Prasad, Teja and Shiv Saran. Eight others, namely Raj an, Surendra Singh, Hori Lai, Amar Singh, Ram Sajiwan, Chhutna, Prayag and Raghuraj received .serious injuries. Out of them Rajan, Surendra Singh and Amar Singh succumbed to their injuries.
2. While the truck was trying to escape and did not stop on the signal of the aforementioned road and injured, one of those in the crowd gave a lathi blow breaking the right side head light of the truck. It was also claimed by the witnesses, who were present in the crowd, that they saw the face of the driver in I he head-lights of the truck and in the light which was inside the driver's cabin. None of those persons on the scene of occurrence, including Abdul Karim Chowkidar were able to note the number of the truck. They were only able to see that the truck was of the green colour.
3. After the occurrence Abdul Karim Chowkidar, who was on duty and was also present on the scene of occurrence proceeded to Police Station Hussainganj as the scene of occurrence is village Handia which is within the Police Circle of Hussainganj. The Police Station is six miles from the scene of occurrence. Abdul Karim lodged the report at the Police Station Hussainganj on 15-9-1975 at 2.'M) A. M. the same night.
4. The tragedy immediately activated the Police in taking immediate action. Sri Abdul Bashir Khan S.O. Hussain Ganj recorded the statement of Abdul Karim Chowkidar at the Police Station and proceeded to the scene of occurrence. On the scene of occurrence he prepared the inquest reports of Ram Khelawan, Lakshmi Prasad, Lakshman Prasad, Prahlad alias Moti, Virendra Singh and Chhiddu. The inquest reports of Inder, Ram Saran, Teja, Deva Dutt and Ram Raj were prepared by Likendra Pal Singh. Thereafter he recorded the statements of Raj Bahadur and Rajesh and visited the scene of occurrence. He recovered the glass pieces of broken headlight of the truck. He also recovered from the scene of occurrence a piece of Jhalar. All these articles were separately sealed. The dead bodies were sent for post-mortem. He had also recovered bloodstained earth from two different scenes of occurrence. The bloodstained earth was recovered from the place where Ram Khelawan and Inder were overrun by the truck and also from the Pulia where the aforementioned nine persons were killed on the spot and three others died later on. On 16-9-1975 he recorded the statement of Kesari Nandan Pandey, the owner of the truck in Fatehpur Town.
5. The autopsy on the cadaver of Ram Raj, Girdhari, Teja, Chhiddu, Moti, Lakshman Prasad, Chhadammi Prasad and Ram Khelawan were performed on 15-9-1975 while the autopsy on the bodies of Amar Singh, Surendra Singh, Inder and Ram Saran was performed on 16-9-1975. The autopsy on the body of Rajan was performed on 29-9-1975. These post-mortem reports related also to the persons who succumbed to their injuries some time after the occurrence. These post-mortem reports were formally admitted by the learned Counsel for the accused. They were, therefore, accepted without the Doctors being called in evidence
6. All the Police Stations of Fatehpur and Kanpur were alerted telephonically to apprehend the person responsible of this tragedy. S.O., Fatehpur immeditely called the truck owners of Fatehpur. He came to know on 16-9-1975 that Kesari Nandan Pandey was the owner of Truck No. U. P. W. 594 and that truck left for Kanpur on that night. He also learned from some informer that that truck was responsible for this tragedy. Sri S. N. Prasad, Deputy Superintendent of Police, Fatehpur, communicated this information on telephone to Police Station Babupurwa at Kanpur that there was possibility of the truck, which was responsible for this accident, being found at the workshop of Chhedi. Sri K. D. Singh, S. I. attached to Police Station Babupurwa raided the workshop of Chhedi. He found the appellant and Truck No. U. P. W. 594 at about 2.30 P.M. Rais Ahmad Mistry was busy in repairing the truck. He arrested the appellant. He found right side headlight of the truck broken. He further found blood stains on the tyres of the truck. The blood stained earth from the tyres and pieces of the glass of the headlight were taken into possession and their memorandum were prepared. Thereafter the truck, the appellant Chhedi and Rais Ahmad were taken to the Police Station. The appellant was made Bapardah. After his arrest he was taken to Police Station Babupurwa as already mentioned above. On 17th Sep., 1975 the appellant was despatched from Babupurwa to District Jail Kanpur. From District Jail Kanpur he was transferred to Fatehpur on 27-9-1975. He was kept at Fatehpur on the night of 27th September, 1975 and was sent to District Jail Fatehpur on 28-9-1975. The identification proceedings relating to the appellant took place in District Jail Fatehpur on 25-10-1975. He was correctly identified by Raj Bahadur Singh, Maha-deo Singh, Rajesh Kumar, Ram Lai and Ram Sajiwan.
7. A report was also made by the Investigating Officer to the Uttar Pradesh Forensic Science Laboratory, Lucknow for comparing the broken pieces of headlight glass of the truck in question recovered from the scene of occurrence and the broken pieces of glass of the headlight recovered from the Truck No. U. P. W. 594 within Police Circle of Babupurwa, Kanpur. Bloodstained pieces of tyre were also sent to the Chemical Examiner. After completing the investigation the charge-sheet was submitted against the appellant, Chhedi and Rais Ahmad. The latter two were acquitted by tho learned Sessions Judge.
8. The appellant denied that he was driving the truck which had caused the accident and had killed such a large number of persons on the scene of occurrence. He also denied that he was the driver of the truck in question. He further claimed that he was not arrested from the Workshop of Chhedi or from Truck No. U. P. W. 594, He further claimed that he was not kept Bapardah and was shown to witnesses before being put up for identification. He claimed that he was falsely implicated in the case.
9. After the charge-sheet was submitted, the case was duly committed to the Court of Session. In the Court of Session charges under Sections 304A, I. P. C, 304, I. P. C, 201, I. P. C., 337 I. P. C, and 302, I. P. C. were framed by the learned Additional Sessions Judge.
10. The prosecution examined among the eye-witnesses Rajesh Kumar P. W. 2, Ram Lai P. W. 4, Raj Bahadur Singh P. W. 9, Mahadeo Singh P. W. 12 and Abdul Karim Chowkidar P. W. 15, the first informant. Among them all excepting Abdul Karim identified the appellant in jail also. Kesari Nandan Pandey P. W. 13 was the owner of the Truck No. U P W 594 and the appellant was in his employment. Sri K. N. Tandon P. W. 17 was the Magistrate who conducted the identification proceedings of the appellant on 25-10-1975 in District Jail Fatehnur. P. W, 22 S. I. K. D. Singh had recovered the truck in question on 16-9-1975 and had also arrested the appellant from the Workshop of Chhedi. Arvind Kumar P. W. 16 and Sri Nath P. W. 21 are the witnesses of recovery of the truck P. W. 14 is the Station Writer of Hussainganj Police Station. He recorded the report lodged by Abdul Karim P.W. 15. P. W. 25 Sri S. N. Prasad, Deputy Superintendent of Police, Fatehpur, gave intimation on telephone to Police Station Babupurwa for the likelihood of the truck being found at the Workshop of Chhedi. The prosecution further examined Abdul Bashir Khan. The appellant did not examine any witness in defence.
11. The learned Sessions Judge found aforementioned evidence against the appellant proved and accordingly convicted him. He sentenced the appellant to death under Section 302, I. P. C. subject to confirmation by this Court and gave various terms of imprisonments under other sections.
12. In appeal before us the learned Counsel for the appellant has contended that the learned Sessions Judge committed an error in holding that the accident in question was caused by Truck No. UPW 594. He also committed an error in drawing the conclusion that the truck was driven by the appellant. He has further attacked the finding of the learned Sessions Judge in placing reliance on the evidence of identification of the appellant and it is further argued by the learned Counsel for the appellant that even if it be found that the appellant had committed the offence of killing of Ram Khelawan and Inder by rash and negligent driving the other deceased persons and injured had no right to stop him and since he had the reasonable apprehension of getting grievous hurt or of being murdered by the crowd he could cause their death by steering past through them in exercise of his right of private defence.
13. The testimony of the eye-witnesses Abdul Karim Chowkidar P. W. 15 corroborated by the first information report that he lodged at Police Station Hussainganj the same night at 2.30 A. M. and fully supported by the statements of Rajesh Kumar P. W, 2, Ram Lai P. W. 4 whose son Surendra was also overrun by the truck, Raj Bahadur Singh P. W. 9 and Mahadeo Singh P. W. 12 does not leave any room for doubt that in village Handia on Fatehpur-Bhitaurra Road Ram Khelawan and Inder were crushed on the road side and when a number of people tried to stop that truck by standing on the road on the culvert they were overrun by the truck. This further finds support and corroboration from the testimony of Abdul Bashir Khan P. W. 27 who found the dead bodies of Ram Khelawan and Inder at Points A and B shown in the site plan and as many as nine dead bodies at the culvert. It is, therefore, clearly and conclusively proved that a truck had killed two persons at points A and B and nine persons at the culvert shown at points C and D in the site plan.
14. It has to be determined whether the accident in question was caused by Truck No. UPW 594. P. W. 25 Sri S. N. Prasad was the Deputy Superintendent of Police, Fatehpur, on 16-9-1975. He has stated that in connection with this crime all the local truck owners of Fatehpur were called. They included Keshari Nandan Pandey P. W. 13 also. He was owner of truck No. UPW 594. Sri Abdul Bashir Khan P. W. 27, Investigating Officer, claimed that he gave notice to Sri Kesari Nandan Pandey and called him. That notice is Ex. Ka-16. From Sri Kesari Nandan Pandey he came to know about the presence of the truck at the workshop of Chhedi Mistry in Bakerganj within Police Station Babupurwa in Kan-pur Town. P. W, 13 Kesari Nandan Pandey has made a statement on oath that he is the owner of truck No. UPW 594. In Sep., 1975 the truck was taken by the appellant to Kanpur. He admitted having given statement Ex. Ka-5 dated 16-9-1975 to the Investigating Officer. In this writing it is stated that the truck in question was taken to Kanpur and it was likely to be found at that time in Bakerganj Mohalla Police Station Babupurwa, Kanpur. He had also stated that it was the night between 14th and 15th Sep., 1975 that the truck was taken to Kanpur.
15. After over-running Inder and Ram Khelawan, it is stated by the prosecution witnesses that the truck was trying to speed away when a large number of persons took their position in the middle of the road and tried to steer past through them. Raj Bahadur Singh P, W. 9 claims that he had struck a lathi blow at the truck as a result of which the headlight of the right side of the truck was broken. The Investigating Officer Sri Abdul Bashir Khan P. W. 27 claims that he recovered the pieces of glass of that headlight of the truck on the road at the culvert. He took them in his possession, prepared their memorandum and sealed them.
16. S. I., K. D. Singh P. W. 22 claims that after receiving telephonic intimation from Fatehpur he proceeded on 15-0-75 for finding out the truck. He ultimately found truck No. UPW 594 at 2 P.M. in Mohalla Bakerganj at the Workshop of Chhedi Mistry. He found the appellant present there. The truck was being repaired. Chhedi and his Assistant Rais Ahmad, who were accused before the learned Sessions Judge, were changing parts of the truck. He found blood stained earth on the tyres and also found the right side of headlight and its bulb broken. He found the glass of the right side of the headlight and its bulb broken. He took those broken glass pieces in his possession and sealed them. The truck was taken to Police Station Babupurwa where the memorandum of the blood stained earth and glass pieces were prepared. Arvind Kumar P. W. 16 was witness to the memorandum and he has admitted being witness to those memoranda. Srinath P. W. 21 also admits that he was a witness to the memoranda of recovery of blood stained earth and of glass pieces. Both Arvind Kumar P. W. 16 and Srinath P. W. 21 have stated that they were called at the Police Station and they had not gone to the Workshop of Chhedi. Permission was taken by the prosecution to cross-examine both these witnesses. Whether these witnesses were present at the workshop of Chhedi is not material. They are only witnesses to the recovery. S. I. K. D. Singh P. W. 22 also admits that since the crowd had collected at the Workshop of Chhedi at the time of recovery, he brought the truck to the Police Station where the recovery memorandums were prepared. Thus there is no doubt about the fact that truck No. UPW 594 was recovered from the Workshop of Chhedi and the appellant was also arrested from there. Right side headlight of that truck was broken into pieces and its pieces were taken into possession. The glass pieces recovered from the scene of occurrence and the glass pieces of the right side headlight of the truck taken in possession at the Workshop within Police Circle of Babupurwa from Truck No, UPW 594 were sent for comparison to the Forensic Science Laboratory, Lucknow. The report of the Junior Scientific Officer of Forensic Science Laboratory Sri Vidya Duut Pandey dated 0-2-1976 is IJx. Ka-84. In that report it is stated that on opening one sealed bundle received in this case he found thirteen pieces of glass. He marked them S-l to S-13. On opening the other bundle 36 pieces of glass were found. They were marked Ql, Q2 etc. He also found one broken glass piece of bulb. It was marked Q-A. His finding was, 'Vivadgrast Kanch Ka Tukra Q2, S-l 1 Va S-13 Ek Hi Kanch ke Tute Huye Bhag Hain'. This report of the Forensic Science Laboratory Ex. Ka-84 is admissible in evidence under Section 293(4)(e) of the Cr.P.C. 1973. This report definitely connects that the glass pieces that were found on the scene of occurrence by the Investigating Officer were of the headlight of Truck No UPW 594 recovered at Kanpur. The bloodstained pieces of tyre were also taken into possession by the Investigating Officer. Those pieces were sent to Chemical Examiner, U. P., Lucknow. Those were item No. 2. They were found to contain blood by the Chemical Examiner vide his report Ex. Ka-83. Both these facts coupled with the testimony of Kesari Nandan Pandey P. W. 13 that his truck had gone to Kanpur on that date amply establishes that the accident and the murders were caused by truck No. UPW 594.
17. The next point that arises for consideration is whether the appellant was the driver of Truck No. UPW 594 which crushed Ram Khelawan and Inder at points A and B caused the death of nine persons and injured many others at the culvert out of whom three succumbed to their injuries later on. The prosecution for this aspect of the case relies on the corroborative evidence of identification of the appellant in District Jail Fatehpur. The appellant was arrested on 16-9-1975 by P.W. 22 Sri K. D. Singh, Section 1. at about 2 P, M. from the Work-shop of Chhedi. At that time, according to this witness, the appellant was sitting inside the truck. It is claimed that the appellant after his arrest was made Bapardah and along with the truck he was brought to the Police Station Babupurwa. Further evidence has been given by Clerk Constable Jai Kumar P. W. If) and Kailash Nalh P. W. 20 and affidavits have been filed by Nazir Ahmad and Raghuraj P. W. 24 and P. W. 2'A respectively that so long as the appellant remained in the lock up of the Police Station he was kept Bapurdah and was not allowed to be seen by any one. Sant Lal P. W. IB claims that he made entries in the General Diary of Police Station Babupurwa of despatching the appellant to District Jail Bapardah through constable Mohammad Vakil P. W, 5. who claims that on 17-9-1975 he had escorted the appellant from Police Station Babupurwa to District Jail, Kanpur. So long as the appellant was in his custody he was kept Bapardah. Sant Lai P. W. 18 claims that he made entries in the General Diary of Police Station Babupurwa of despatching of the appellant to the District Jail Kanpur Bapardah through Constable Mohammad Vakil P. W. 5. Constable Kailash Nath P. W. 20 claims that he had taken the appellant Bapardah from District Jail, Kanpur to the District Jail, Fatehpur. Since he reached Fatehpur after the time for admission of the appellant into Jail in Fatehpur had expired the appellant was kept in the Lock Up of the District. Judge's Court in the night between the 27th and 2Kth Sep., 1975. The appellant was admitted in District Jail, Fatehpur on 28th Sep., 1975. The way in which the appellant has been dealt with by the different Police personnel raises sufficient doubt about the fairness of the prosecution in dealing with him. He was arrested on 16th Sep., 1975. He was sent to District Jail, Kanpur, on 17-9-1975. He was taken out from the District Jail, Kanpur for taking him to the District Jail Fatehpur on 27-9-1975 but on that date too he was not taken in time so that he could be admitted in Fatehpur District Jail the same day. I have if Kailash Nath P. W. 20 had reached late Fatehpur it was his duty to have lodged the appellant in Fatehpur Kotwali, He claims that he was kept in the night in the Lock Up of the District Judge's Court. The Lock-up of the District Judge's Court is an open place where anybody could go and see anyone, Moreover, no record is kept that Lockup was kept out of bounds of any person to know about his arrival or his departure. Either Kailas Nath Constable P. W. 20 was ignorant of proper procedure of keeping the prisoner away from public view or he had deliberately kept him in the Lock-up of the District Judge's Court for showing him to the witnesses. Identification held after adoption of such tactics by the prosecution loses all value.
18. So far as the identification by the witnesses in District Jail is concerned it is also not free from suspicion. The truck after crushing Ram Khelawan and Inder was speeding away and in the process it crushed and injured a large number of people. The eye-witnesses who have identified the appellant claimed that they saw the face of the appellant in the headlights of the truck and in the light that was burning in the driver's cabin. It is obvious that the driver who was trying to speed away and was even callous to crushing would not wait. He must be running away at a high speed, Even if it be presumed that there was light in the driver's cabin it would be perfectly impossible for the witnesses to get any idea of the contours of the face of the driver which would enable them to identify him at a later stage. The evidence of identification therefore, is hardly such on which reliance can be placed.
19. However, apart from the identification evidence, there is other evidence to show conclusively that the appellant was the driver of the Truck No. UPW 594 at the time of the occurrence. It is not disputed that Kesari Nandan Pandey was the owner of Truck No. UPW 594. Sri Kesari Nandan Pandey P. W. 13 states that he was the owner of Truck No. UPW 594. This is the only truck which he owns. He further stated that in Sep. 1975, Sheo Parshan Singh appellant was in his employment. On the night between the 14th and the 15th Sept., 1975 the appellant was his driver. The learned Sessions Judge has also admitted in evidence document proved by this witness Ex. Ka-5. It was a writing given by this witness before the Investigating Officer, in which it was stated that the appellant was the driver of the truck in question and the truck along with the appellant was likely to be found at the Work-shop of Chhedi in Babupurwa Police Circle, Kanpur or Kanpur Jabalpur Transport, T. P. Nagar, Kanpur. It is doubtful ii this statement could be admissible in evidence. It appears that the learned Counsel for the appellant did not raise any objection regarding its admissibility. However, on the clue provided by this document Sri K. D. Singh arrested the appellant at the Workshop of Chhedi Mistri, He found the; truck and also the appellant sitting in it. The statement of Sri Kesari Nandan Pandey P. W. 13 does not leave any room for doubt that at the relevant time of the accident and the occurrence the appellant was the driver of that truck. If the appellant claimed that a person other than himself was driving the truck at the lime of the accident, the onus would shift to him after I Sri Kesari Nandan Pandey's reliable I statement that the appellant was the driver of the truck at the time of the occurrence. The cross-examination of Sri Kesari Nandan Pandey P. W, 13 does not show that he should have any reason to be inimical in any way to the appellant which could lead him to falsely depose against him. We have, therefore, no hesitation in coming to the conclusion that at the time of the occurrence the appellant was its driver and that he was responsible for crushing Ram Khelawan and Inder on the road side and crushing intentionally the other twelve persons in the course of the occurrence.
20. The learned Counsel for the appellant has contended that the common experience is that generally after an accident with an automobile when the people of the crowd stop an automobile they cause serious injuries to the driver of the vehicle if he stops the vehicle. The appellant, therefore, after the accident in which Ram Khelawan and Inder were killed got the apprehension that he would be seriously dealt with and even grievous injuries may have been caused to him when the people of the crowd wanted to stop the vehicle. It was therefore, open to the appellant to cause death of those who thus obstructed the truck. We cannot, however, accept this contention.
It is no doubt true that in many cases after the accident the crowd has seriously dealt with the drivers but it cannot be accepted as a rule that in every case as soon as the accident takes place the driver gets a right to speed away after crushing the people who are on the road. This attitude of a driver violates the provisions of the Motor Vehicles Act which requires him to stop the vehicle and render every aid to the victims.
21. Moreover, so far as this case is concerned, there is no evidence to show that the people who wanted to stop this vehicle on the culvert wanted to cause grievous injuries to the driver. They may only be trying to apprehend him for committing the crime under Section 304A, I. P. C. and hand him over to the Police. It has also been contended that the people who wanted to stop the vehicle did not get any right to arrest the appellant under Section 43(1), Cr.P.C. 1973 as that section gives right to any person to arrest an offender who has committed a non-bailable and cognizable offence. It is contended that the offence under Section 304 A, I. P. C. which the appellant had committed is a bailable offence and therefore it did not give any right to the people to arrest the appellant. It may be that strictly speaking under the law they may have no right to arrest him but it was in their view (hat two persons were crushed under the truck. Such an offence could very well be under Section 304A, I. P. C. or under Section 304, I. P. C. or even under Section 302, I. P. C. The people on the road therefore in the instant case had a right to arrest the appellant. Even assuming that they had no such right it is not open to any driver to overrun people standing on the road and escape from the scene. It is the duty of every driver to slop the vehicle whenever there is a human being or animal obstructing his passage. Apart from it the proposition stated by the learned Counsel for the appellant would be a very dangerous proposition and would give a licence to any driver to run away from the scene of occurrence after an accident crushing the people. Such a precedent would not. be in the public interest. We are, therefore, not prepared to hold that the appellant had any right of private defence in running away from the scene of occurrence and causing the death of multitude of people.
22. We, therefore, find it established beyond all reasonable doubt that the appellant had committed the offence under Sections 304A, I.P.C, 302, I.P.C, 337 I.P.C and 201, I.P.C. We agree with the conclusions arrived at by the learned Sessions Judge.
23. The learned Sessions Judge has imposed the capital punishment under Section 302 against the appellant. We have given our anxious consideration to this aspect of the case whether in a case like this sentence of death should be imposed, There is no past record of the appellant having committed similar offences in the past. Taking the general history of similar offences committed in similar circumstances in a large number of cases, the drivers have been given severe beating by the crowd, such fear might have led him to steer past through the people whom he had crushed. In such circumstances we do not think that the appellant deserves the extreme penalty provide ad by the law. His capital sentence, shall therefore, be commuted to imprisonment for life.
24. The appeal of Shoo Pershan Singh appellant against the judgment dated 23-8-1978 passed by Sri Surya Prasad Vth Additional Sessions Judge, Fatehpur, in S.T. No. A-375 of 1975 is dismissed with the modification that his conviction under Section 302, I. P. C. recorded by the trial Court is upheld but the death sentence awarded to him thereunder is set aside and instc;yj lie is sentenced to life imprisonment. has conviction under Sections 304A I. P. C, 337 I. P. C, and 201 I. P. C, and sentences as awarded thereunder by the trial Court are upheld. All the sentences shall run concurrently.
25. The reference made by the learned Sessions Judge for confirmation of the death sentence passed upon the appellant is rejected.
26. The appellant is in jail. He shall remain there to serve out his sentences as awarded by this Court.