JUDGMENT 1. - This is an appeal against the judgment of the learned Additional Sessions Judge, Sirohi dated December 15, 1975 whereby the accused-appellant Mitha Ram was convicted under Section 307, IPC and. sentenced to five years rigorous imprisonment and a fine of Rs. 1000, in default of payment of fine he was ordered to undergo two months simple imprisonment. 2. The facts of the prosecution case, in brief, are that Chandra Ram, father of the accused Mitha Ram was murdered by Deva Ram somewhere in the year 1964. Deva Ram was convicted and sentenced to imprisonment for life He was released on May 25, 1975 from jail after having undergone the imprisonment for life. It was alleged that the accused appellant Mitha Ram bore ill-will against Deva Ram and with a view to take revenge for the murder of his father he deliberately and intentionally on October 9, 1975, at about 1215 p m. tried to struck down Deva Ram with a view to kill him. Injured Deva Ram was walking on the foot-path on his right aids when the accused-appellant Mitha Ram came in the jeep No R.J.C. 0231. It is said that he was struck down by the jeep and he received multiple injuries. The version of the accused-appellant, however, is that while he was going in the jeep a dog suddenly came in front of the jeep and while trying to avoid the running over of the dog, the brakes of the jeep failed, and struck Deva Ram. It was also contended by him that some mechanical defects developed in the brakes as a result of which the brakes did not work, and resulted in this accident. The learned Additional Sessions Judge held that the explanation given by the accused-appellant was hot worthy of credence and that the offence squarely fell within the ambit of Section 307, IPC, and he accordingly convicted and sentenced the accused-appellant as indicated above. 3. On behalf of the accused-appellant it was contended that the learned Addl. Sessions Judge has fallen into an error of law in convicting the accused appellant on the solitary statement of the injured PW 1 Deva Ram. It was further contended that the three eye-witnesses, namely PW 2 Ganesh, PW 3 Chhaganlal and PW 4 Sakka did not support the prosecution story, and were declared hostile at the request of the prosecution. Sessions Judge has fallen into an error of law in convicting the accused appellant on the solitary statement of the injured PW 1 Deva Ram. It was further contended that the three eye-witnesses, namely PW 2 Ganesh, PW 3 Chhaganlal and PW 4 Sakka did not support the prosecution story, and were declared hostile at the request of the prosecution. It was also contended that the statement of Jagat Singh PW 5, who is a Mechanical Inspector in the Police Department, also does not inspire the confidence of the Court as he has made two reports. PW 6 Dr. B. S. Mathur has examined the injured PW 1 Deva Ram and found the following injuries on his person : 1. Abrasion 3 cm x 3 cm on the posterior aspect middle third left arm. 7. Complaint of pain in the chest right side. No visible injury present. 3. Contusion 5 cm x 4 cm on the left ankle joint. 4. Abrasion 1 cmx 1/4 cm on the upper third left leg external surface. 5. Abrasion 2 cm x 2 cm on the left joint populitial surface posteriorily. 6. Contusion 3 cm x 3 cm on the middle third left fore-arm external surface. 4. It was further contended on behalf of the accused-appellant that the learned Addl. Sessions Judge has seriously erred in law in drawing support from the statement of the witnesses under section 161, Cr. P. C. It was contended that these statements could be used only for the purpose of contradiction. It was also contended that from the facts and circumstances of the case, it could not be inferred that the accused acted with such intention or knowledge that under the circumstances of the case, he would cause the death of the person injured. It was further contended that the accused-appellant, if at all can be held to be guilty of the accident due to sudden failure of the brakes. In the alternative, it was contended that at best the offence of the accused would fall under section 338, IPC which is punishable to a sentence of two years or with fine which may extend to Rs. In the alternative, it was contended that at best the offence of the accused would fall under section 338, IPC which is punishable to a sentence of two years or with fine which may extend to Rs. 1,000, or with both The learned counsel for the accused-appellant placed reliance on State of Gujarat v. Haidar Ali Kalubhai, Cr.L.R SC 1976 114 , Ponuswami v. State, 1975 Cri.L.J. 509 Tehsildar Singh v. State of UP, AIR 1959 SC 1012 and Badri v. State of Rajasthan . 5. The learned Public Persecutor contended that the facts and circumstances of the case warrant a conviction under section 307, IPC. It was further contended that the learned counsel for the accused appellant has not succeed in making out a case justifying an interference on the appellate side. It was also contended that as there was enmity between the two, the accused-appellant wanted to wreak vengeance against the injured for the murder of his father. He, therefore, contended that the appeal has no merit and deserves to be dismissed. 6. The respective contentions of the learned counsel for the accused-appellant and the learned Public Prosecutor have been considered and the record of the case perused. Besides the injured PW 1 Deva Ram, the three other eye-witnesses, namely PW 2 Ganesh, PW 3 Chhagan Lal and PW 4 Sakka have not supported the prosecution story, and have, been declared hostile at the request of the prosecution. 7. As a matter of fact, the entire case hinges on the appreciation of the sworn testimony of PW 1 Devaram. He has stated that Chandra, father of the accused, was murdered by him, and that he was sentenced to imprisonment for life. After having undergone the imprisonment for life, he was released on May 24, 1975. On October 9, 1975, he was going to the court for moving an application to the Inspector General of police for seeking reinstatement in service. When he came near the shop of a merchant where Wooden legs were lying, the accused came in a jeep which was driven rashly and negligently. He was struck down, and fell on the road. A number of people had collected there, and he found that within a span of five minutes the accused came back and wanted to again strike him by the jeep, so as to kill him. He was struck down, and fell on the road. A number of people had collected there, and he found that within a span of five minutes the accused came back and wanted to again strike him by the jeep, so as to kill him. But the accused did not succeed as a number of persons had collected there. It was contended on behalf of the accused-appellant that he did not mention so in his statement before the police which he made while in the hospital. It was also contended that even in the FIR such a mention has not been made. PW 1 Devaram has further stated that he cried that as the accused-appellant bears ill-will against him, he will murder him, and therefore, the persons who had collected there, saved him. The learned Addi. Sessions judge held that this did not tantamount to a contradiction, and it could at best be considered to be an omission. PW 5 Jagatsingh, who is a Mechanical Inspector of the Police Department, has also submitted two reports. The first report dated October 10, 1975 states that the parking light glass of the right side is broken, and that there are signs of impact on the right rim of the front right wheel. The pipeline near the master cylinder is leaking and brake oil was coming out. The foot-brake is not working. The rings of the nut have been completely blurred. Handbrake and steering wheel and horn were found to be in working order. When further asked by the SHO, this Mechanical Inspector reported on October 11, 1975 that the rings of the nut have got blurred as the master cylinder was opened, and this must have been done after the incident. He further stated that it appeared that the rings of the nut were blurred as the master cylinder was opened in brake after the accident. The second report sent.on October 11, 1971 was, however, given by him without examining the vehicle, as the vehicle was not re-summoned by him. In State of Gujarat v. Haidarali Kalubhai it was held that the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries, would not. In State of Gujarat v. Haidarali Kalubhai it was held that the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries, would not. reveal the accused's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutche road. In this case, there was enmity between the accused and the deceased on account of Panchayat elections, and therefore, the prosecution case was that the accused wilfully and deliberately drove the vehicle towards the cot with the intention of causing death to the deceased. The accused was tried under section 302, IPC, but was convicted by the learned Sessions Judge under section 304 Pt. II, IPC and was sentenced to rigorous imprisonment for seven years for causing the death of the injured. On appeal to the High Court, the conviction was altered to one under section 304 A, IPC and the accused was sentenced to rigorous imprisonment for 18 months, and a fine of Rs. 500, and in default thereof for further rigorous imprisonment for six months. The State of Gujarat went up before the Supreme Court in special appeal. But appeal of the State of Gujarat was dismissed and the sentence passed by the High Court was sustained. In Badri v. State of Rajasthan , it was held that if a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can based on his sole testimony. 8. In Tehsildar Singh v. State of UP , it was held that 'the statements recorded under 161 Cr P.C. could be used only for the purpose of contradicting the witness by confront g him with his previous statement. In Pouswami v. State it was held that the statements of witnesses recorded by police under section 161, Cr. P.C. can be used only to contradict witness in Court. In Pouswami v. State it was held that the statements of witnesses recorded by police under section 161, Cr. P.C. can be used only to contradict witness in Court. They have only negative value. It was contended by the learned counsel for the appellant that the statement under section 161, Cr. P.C. could not be relied for the purpose of corroboration. The learned Public Prosecutor relied on Bhisa v. State of Rajasthan, 1975 WLN 213 wherein it has been held that omissions unless by necessary implication deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box and the argument that must be in regard to important features of an incident which are expected to be included in the statement made before the police is not tenable. The entire prosecution story hinges on the statement of PW 1 Devaram. There is no denial of the fact that Devaram has tried to improve his statement by adding something which he did not state before the police in his statement under section 161, Cr. P.C. Kuen in the FIR, it has not been mentioned that the accused came back within five minutes to again strike down the injured Devaram. Taking an overall view of the facts it appears that the accused was driving the vehicle really and negligently, and that the brakes were not in working order. The intensity and the force of impact of the vehicle with the injured is not of such a nature which could result in his death. As is evident from the statement of the Medical Officer Dr. S.B. Mathur PW 6, the injured has received only two minor fractures and some abrations. Under such circumstances, it would be difficult to hold that the section of the accused squarely falls within the ambit of section 307, IPC. From the facts proved on record it is clearly established that the accused drew the vehicle with a high speed in rash and negligent which resulted in knock down PW 1 Devaram. The entire matter has been exaggerated as Devaram happens to be the murderer of the father of the accused. There is no evidence on record which may inspire confidence in the Court that it was a deliberate and intentional accident caused by the accused-appellant with a view to murder PW 1 Devaram. The entire matter has been exaggerated as Devaram happens to be the murderer of the father of the accused. There is no evidence on record which may inspire confidence in the Court that it was a deliberate and intentional accident caused by the accused-appellant with a view to murder PW 1 Devaram. Having given my most anxious consideration to the entire facts on record. I am convinced that a case under section 338, IPC is clearly proved against the accused-appellant. 9. For the reasons stated above, the appeal filled by the accused-appellant is partly allowed. The conviction and sentence under section 307, IPC is altered to one under section 338, IPC. The accused-appellant is accordingly acquitted of the offence under section 307, IPC. His conviction and sentence under section 307, IPC are thereby set aside. He is, however, convicted under section 338, IPC and sent need to 18 months rigorous imprisonment with a fine of Rs. 200, and in default whereof further rigorous imprisonment for one month. The accused-appellant shall, however, be entitled to a set-of under section 428, Cr. P. C. for the period he has remained in detention during investigation enquiry or trial. *******