TATIA, J. - (1.) 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.
(2.) 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 trial and have been convicted by the trial court. However, coaccused 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 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 vegetablestomatoes 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 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 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 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.
(3.) 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 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 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. ;