1. The appellant Hanuman Bhat has been convicted by the learned Sessions Judge, Ganganagar under Section 302, Indian Penal Code for committing the murder of Teja Singh by intentionally driving a truck over him, and has been sentenced to imprisonment for life. Aggrieved by the conviction and sentence Hanuman Bhat has filed this appeal.
2. The prosecution case is that the deceased Teja Singh was also a driver of one of the trucks, which used to ply at Sangariya. On November 13, 1971, there was quarrel between PW 2 Hanuman Pandit and one Ram Pratap, who are who drivers of trucks regarding the turn to load goods on their respective trucks. Teja Singh supported Hanuman Pandit & the accused supported Rampratap. This quarrel took place at about 11 A.M. but the heat generated between the parties did not subside. It is said that at about 8.45 pm, that day, Teja Singh (deceased) and P.W. 2 Hanuman Pandit were walking on the road infront of the petrel pump, situated at the truck stand, in village Sangariya, Teja Singh was going 5 to 6 'pawandas' ahead of Hanuman Pandit (PW 2). PW 1. On Prakash was also walking on the other side of the road which runs between Sangariya and Hanumangarh, in front of Ramdevji's temple which has been shown as No. 3 in the site-plan Ex P 5, prepared during the course of investigation The accused came driving the truck No. HRH 5980 from the side of Hanumangarh and seeing PW 2 Hanuman Pandit, on the way, tried to drive the truck over him, but Hanuman Pandit managed to jump into an enclosure nearby and thereby saved himself. The deceased Teja Singh, seeing the truck coming on him, climbed a raised plat form (chabutra) marked No. 1 in the plan, contiguous to Ramdevji's temple, but the accused drove the truck over the 'chabutra'. The truck struck against Teja Singh, who fell down and raised a hue and cry. P.W. 1 Om Prakash and another person Birbal, who was also walking on the road, ran to vards the 'chabutra' along with Hanuman Pandit to look after Teja Singh, but meanwhile, the accused brought that truck again over the 'chabutra' after taking a turn at some distance. Thereupon, P.W. 1 Om Prakash and PW 2 Hanuman Pandit and other persons fled from the 'chabutra', but Teja Singh, who was lying there was run over by truck & badly wounded. Thereafter the accused drove the truck towards Hanumangarh side. The injured Teja Singh was taken to the Government Hospital, Sangariya in truck No. 7633, belonging to Om Prakash Teja Singh expired in the hospital at 10.20 p.m., but before his death his dying declaration was recorded by the Investigating; Officer and a copy of the same was put on the record and marked Ex. P. 13. A first information report of the occurrence was lodged by PW 1 Om Prakash at police station, Sangariya at 9.30 p.m. & PW 9 Hanuman Datt, Station House Officer, incharge police station, Sangariya took up the investigation, left for the place of occurrence and after carving out necessary investigation, prosecuted the accused to face the charge under Section 302, Indian Penal Code, for the murder of Teja Singh.
3. In the course of trial, the prosecution examined nine witnesses. The accused denied haying committed the offence and pleaded that he was co nine; from the side of Hanumangarh Tehsil and was accompanied by one Manaram. His defence is that Taja Singh (deceased), who was drunk, was standing near the petrol pump, and was carrying a stick in his hand. He abused the accused, and thereafter claimed on the foot-board of the truck, opened the door sear the driver's seat and caught hold of the steering. He goes on to state that the deceased tried to turn the steering towards his side, whereas the accused tired to turn the steering towards the opposite direction. He further states that initially the truck was in halting position, though the engine was running and when he found that the deceased was trying to deprive him of control over the steering, he drove the truck which struck against a wall of a shop near Ramdevji's temple and climbed over the 'chabutra'. His case in is that it was in the process of this struggle between him and the deceased that Teja Singh received injuries. He has denied having driven the truck on the chabutra' a second time after taking a turn In support of his defence, he examined three witnesses : DW 1 Jagdish, D.W. 2 Bhana Ram, and D W. 3 Dr. M.P. Agarwal.
4. We may state, here, in passing, that Rampratap was tried along with the accused-appellant under Section 302 read with Section 114, Indian Penal Code, but he was acquitted.
5. The learned Sessions Judge substantially accepted the evidence of PW 1 Om Prakash, PW 2 Hanuman Pandit, and PW 5 Birbal and came to the conclusion that the 'accused drove his truck deliberately on Teja Singh where by he fell down and the truck passed over him.' He also found that ' the defence version is an after thought and highly improbable'. As regards driving the truck over the deceased second time, the learned Judge observed that 'the prosecution story regarding the truck coming second time and running over Teja Singh cannot be held to be false, though it may appear to be doubtful on account of absence of crush injury causing laceration, haemorrhage, and multiple and comminuted fractures.' On the question of dying declaration, the learned Judge found that the words 'Do Dafa' occurring in the dying declaration Ex. P. 13 night have been written after the completion of the statement in the presence of the doctor on being asked from the injured but it would all be conjectural'. In the result the learned Judge held that it was 'established beyond all reasonable doubt that Teja Singh was deliberately knocked down and was run over by accused Hanuman Bhat, whereby Teja Singh met his death.'
6. Learned Counsel for the appellant has strenuously urged that the story put forward by prosecution that the accused drove the truck a second time over the deceased is fabricated. He has also argued that the evidence of PW 1 Om Prakash, PW 2 Hanuman Pandit and PW 5 Birbal is unreliable and the version given by the accused is highly probable and should be accepted.
7. That the deceased Taja Singh died on account of injuries caused to him by the impact of the truck, at the relevant time when it was being driven by the accused, is a matter beyond doubt, and in fact, has not been challenged before us. The post-mortem examination of the deceased took place on November 14, 1971, and the following injuries were found on his body:
(1) One bruise 2 1/2' x 1/2' on right shoulder upper part
(2) One bruise 2' x 3/4' above the left eye-brow
(3) One bruise 3' x 1/2 on left side lower jaw
(4) One abrasion 2' x 1/2' on back lower right thoracic region
(5) One abrasion 3' x 1' on right superior anterior illiac crest
(6) One abrasion 5' x 1/3' x 1/3 en abdomen right lumber region
(7) One abrasion 1 1/2' x 1/2' on right buttock lateral side
(8) One abrasion 3'x 1/2' on right posterior superior illiac crest
(9) One abrasion 1' x 1' on left buttock
(9) One abrasion 3 1/2' x 1/2' on lateral side right knee joint
(11) One abrasion 3 1/2' x 1' on left thigh upper one third
(12) One abrasion 2 1/2' x 1/2' on lateral side left lower arm upper one third
(13) One abrasion 1 1/2' x 1/2' on left shoulder inner side
Injury No. 5, 7, 8 caused the fracture of right hip bone and of vertebral column and dislocation right hip joint.
8. The first information report was lodged promptly and it was clearly mentioned therein that the deceased had been run over by the truck driven by the accused. The prosecution witnesses P.W.I Om Prakash, P.W. 2 Hanuman Pandit and PW5 Birbal have also stated to tint effect. Even the accused has admitted in his statement that the death of the deceased was caused on account of impact of the truck, though he has given a different version of the occurrence. Thus the fact that Teja Singh died on November 13, 1971, on account of the impact of the truck, which was being driven by the accused, is established beyond all manner of doubt.
9. The short question that falls for determination is whether the accused intentionally drove the truck over Teja Sir eh in order to kill him or it was on account of the act of the deceased himself in climbing over the truck that he met his death in the course of struggle between him and the accused. Of course, the burden lies on the prosecution to prove that the accused deliberately drove the truck over the deceased with an intention to cause his death. In case the element of mens rea or intention is proved, against the accused, the offence will amount to one of murder.
10 Learned Counsel for the appellant has strenuously urged that the theory of the truck having been driven a second time over the 'chabutra' to kilt the deceased Teja Singh is fabricated In support of this submission he has urged that the words 'Do Data' (twice) have been subsequently added in the dying declaration Ex. P 13 so as to aggravate he offence into one of murder. He has further argued that according to the prosecution evidence 15 to 20 persons had collected there when the truck is said to have struck the deceased and it is not likely that the accused may have dared to drive the truck a second time over the 'chabutra' to kill the deceased in the presence of so many persons. In this connection he has also argued that if the accused had driven to truck twice over the deceased, as alleged by the prosecution, then far more severe and crushing injuries may have been caused to the deceased, but the injuries are not of such a nature.
11. The dying declaration Ex. P. 13, translated into English reads as under:
In order to kill me Hanuman Bhat has driven the truck over me twice. He drove the truck over me because we had quarrelled.
12. PW 9 Hanuman Datt states that he had recorded the dying declatation Ex P. 13 as stated by the deceased Teja Singh in the presence of the doctor after ascertaining from the doctor that the deceased was in a position to make a statement. He further states that Ex. P13 was recorded in the presence of Dr. Om Prakash, and thereafter the deceased put his thumb-mark over it and that Teja Singh was in his full senses when he gave the statement at 10 p.m in the night. In cross-examination he has refuted the suggestion made by the defence counsel that he had forged Ex P 13 and that there was overwriting over the words 'Do Dafd' in it. He has also denied that he had written the word 'two' of his own accord later on PW 6 Om Prakash has stated that Ex P 13 was recorded by the Station House Officer Hanuman Datt in his presence and was written as stated by Teja Singh who put his thumb-impression on it, and that Ex P. 13 also bears the signatures of the witness. He has further deposed that nobody intervened while Teja Singh was speaking and Teja Singh's voice was clear No question has been put to this witness in the course of cross-examination that the words 'Do Dafa' (twice) were written in the dying declaration subsequently and were not there when the statement was recorded Learned Counsel for the appellant has invited us to peruse the original Ex. P 13, and has tried to persuade us to come to the conclusion that on a bare perusal of the document it appears that the word 'Do Dafa' were added subsequently. In our opinion, we cannot tome to a conclusion other way on a mere perusal of the original Ex P13. But we find it difficult to accept the contention of the learned Counsel in absence of evidence to that effect that these words were subsequently added No question has been put to the doctor PW 6 Om Prakash that the words 'Do Dafa' were not there in the document at the time the document was got thumb-marked by the deceased and singed by the doctor The learned lower court has no doubt, one stage, said that 'from the naked eye it appears that both the words 'Do Dafa' had been added afterwards', but in the very next sentence it has observed that 'these words might have been written after completion of the statement in the presence of the doctor on being trying from the injured but it would be all conjectural'. We ate, therefore unable to discard the dying declaration as a touched-up document.
13. The first information report clearly mentions that the accused had driven the truck twice over T.S. with a view to kill him To the same effect are the statements of PW 1 Om Prakash PW2 Hanuman Pandit, & PW5 Birbal Besides that PW9 Hanuman Dan has stated that in the site-plan prepared by him, he has shown the marks of the truck by arrows and a perusal of the site-plan Ex. P. 5 shows that there are marks of the truck going from the side of Hanumangarh towards Sangariya beyond the plat-form infront of Ramdevji's temple and turning back towards the temple. PW 1 Om Prakash, PW 2 Hanuman Pandit and PW 5 Birbal have supported the information report. According to this evidence, besides Teja. Singh Hanuman Pandit, Om Prakash and Birbal were at the spot and they saw the accused driving the truck over the 'chabutra' which has plinth of 6', not once but twice and striking the deceased Teja Singh. Even according to the accused it was not a cast of accident on account of any mechanical failure or negligence by him. On the other hand, he has put forward his own version that it was the deceased, who invited the trouble by climbing over the foot board of the truck and trying to beat the driver viz. the accused.
14. We have carefully examined the theory put forward by the defence and find it highly improbable. It does not stand to reason that the deceased succeeded in opening the door near the side of the driver and got control over the steering. It further appears to us that if, in fact, such a thing had happened, according to the ordinary course of human conduct, the driver would have stopped the truck instead of taking the risk of driving it and there by endangering his own life. In any case, we are of the opinion that the prosecution has succeeded in establishing that the occurrence took place in the manner alleged by it. As regards the nature of the injuries, it is sufficient to point out that there is no hard and fast rule that if the truck is driven with an intention to harm or kill a person, particular type of injuries must be caused. It depends upon the nature of impact, the position of the victim and so many other factors as to what sort of injuries may be caused.
15. Our conclusion, therefore, is that the occurrence took place in the manner alleged by the prosecution If that is so, then the question that the accused intended to cause the death of the deceased does not present any difficulty. Intention has to be inferred from the various factors proved in the case. In the first place, there was a quarrel between the accused and the deceased on account of the turn of drivers to carry goods that very day at 11 A.M. Secondly, the 'chabutra' where the occurrence took place is about 11' away from the edge of the road and ordinarily there was no question of the Struck climbing the 'chabutra'. The place of occurrence was fully lighted in as much as we have it in the prosecution evidence that there was an electric lamp near Ramdevji's temple and florescent tube was burning near the petrol pump. The locality where the accident took place is also crowded in as much as 'here are hotels and a petrol pump in it, and, therefore, there is no likelihood of the truck climbing by mistake ever the 'chabutra', which is considerably removed from the road, unless there was intention of the driver to take it on the 'chabutra'. At the top of it all, if it is established as we have observed it is, that the truck was driven a second time on the 'chabutra' over Teja Singh who was already lying injured, there is no doubt left in our minds with respect to the intention of the accused that he intended to cause the death of the deceased Teja Singh by driving the truck over him.
16. The result of the fore-going discussion is that we see no reason to disagree with the learned trial court or the view taken by it. Our conclusion too is that the accused deliberately drove the truck in such a manner so as to hit the deceased Teja Singh with an intention to cause his death. In this view of the matter, he has been rightly convicted under Section 302, Indian Penal Code. Accordingly, we uphold the conviction and sentence awarded to the accused-appellant and dismiss the appeal.