JUDGMENT 1. - Admittedly, on 04/01/2006 at about 9.45 a.m., Sarita aged 15 years, a student of 10th class of Indian Public School, Fatehpur, died due to the injuries suffered by her as a result of collision with Jeep bearing registration No. H.R. 24B. 4207. In the present appeal preferred by Rakesh S/o Kurdaram and Mahesh @ Ramesh S/o Bhanwarlal, we have been called upon to determine whether accused had intentionally committed murder by running the jeep over Sarita or it is a case of accident. Another question, which stare at us is as to who was the driver of the jeep and to whom the said jeep belonged ? Before we make endeavour to answer the above questions, it will be necessary for us to state brief facts of the case. 2. Balveer Singh (PW3), Principal of Indian Public School, Fatehpur presented the written report (Ex.P5) before Aladeen Khan (PW9), who was then posted as Sub-Inspector at Police Station Kotwali, Fatehpur and at the relevant time, he was in-charge of the police station. Written report (Ex.P5) when translated into English, reads as under:- "Shriman SHO Sahab, Fatehpur. Sub.: Information regarding accident. It Is submitted that today at 9.45 student of 10th class Sarita Kulhari D/o Rameshwar Lal aged about 15 years was coming from her house to the school. In front of the Saw Machine (ara machine) of Hussain, Mandawar Road, a vehicle No. H.R. 24B.4207 which was driven rashly and negligently came from the wrong side and collided with Sarita in front of Saw Machine of Hussain ji at Mandawar Road. Sarita suffered injuries on foot and various pats of the body. She was admitted for treatment to Government Hospital Dhanuka. Necessary action be taken." The said report was presented on 04/01/2006 at 10.00 a.m. The case was lodged at 10.00 a.m. and special report reached Illaqa Magistrate on the same day i.e. 04/01/2006 at 1.15 p.m. 3. A perusal of the FIR reveals that due to accident caused by the vehicle, Sarita had died and she was taken to the hospital. Said FIR is silent as to who was the driver and owner of the jeep, which caused the accident. The FIR also specifically stated that the accident had taken place due to rash and negligent driving of the driver of the vehicle, which was coming from the wrong side. Said FIR is silent as to who was the driver and owner of the jeep, which caused the accident. The FIR also specifically stated that the accident had taken place due to rash and negligent driving of the driver of the vehicle, which was coming from the wrong side. Later, on the day of occurrence itself, investigating agency introduced Dharampal (PW1), Bhojendra Singh (PW2), Hemendra Mahla (PW4) and Mahaveer (PW10-uncle) 'chacha' of deceased-Sarita as eye-witnesses. In their testimony, these four witnesses introduced story that accused Rakesh was professing one sided love for Sarita and since efforts made by him to entice Sarita were spurned off and his proposal was rejected by her parents, accused Rakesh on the day of occurrence attempted to establish contact with Sarita and when she refused, he with an intention to cause harm to Sarita drove the jeep towards her and ran over the same on the legs of Sarita resulting into her death. A peculiar feature of the case is that an the injuries are on the lower part of the body i.e. thighs and legs of deceased-Sarita. 4. Sarita was initially admitted to Government Hospital, Dhanuka. There from, she was referred to the S.M.S. Hospital, Jaipur, where she expired on 05/01/2006 at 8.00 a.m. and her autopsy was conducted on 05/01/2006 at 11.20 a.m. by Dr. Anil Solanki (PW5). The said witness in the post-mortem report(Ex.P7) has noted the following injuries on the person of deceased-Sarita:- 1. Diffuse swelling over left thigh. On further examination, there is fracture of left femur bone with huge amount of ante-mortem hematoma. 2. Diffuse swelling over left leg. On further examination, there is fracture of left tibia bone with ante-mortem hematoma. 3. Abraded bruise over whole thighs & left populated area. Bluish-reddish colour. 4. Multiple abrasion of size 3x2 cm to 1x1 cm over left side abdomen. Right leg u/3 dark reddish in colour. As per opinion of the doctor, the cause of death was shock due to cumulative effect of long bone injury & other injuries, which are sufficient to cause death in the ordinary course of nature. Due to the fracture caused to the left side ribs, lungs were congested and it cannot be ruled out that in the present case, death was may be due to fat embolism. 5. Due to the fracture caused to the left side ribs, lungs were congested and it cannot be ruled out that in the present case, death was may be due to fat embolism. 5. Having noted initial version given in the FIR and the medical evidence, to answer the two questions formulated by us, it is necessary to determine whether Dharampal (PW1), Bhojendra Singh (PW2), Hemendra Mahla (PW4) and Mahaveer (PW10) are eye-witnesses of the occurrence or not. 6. Shri Anoop Dhand, counsel appearing for appellant No.1- Rakesh and Shri Vijay Singh, counsel appearing for appellant No.2-Mahesh @ Ramesh have submitted that all the four eye-witnesses being closely acquainted or related with Rameshwar (PW6), father of Sarita are interested witnesses. They have been imported as eye-witnesses later. Counsel for the parties have submitted that by their conduct, their presence at the soot is improbable, unnatural and unconvincing. We may notice here that during investigation, three eye-witnesses have nominated Rakesh, Mahesh and Mukesh @Polu as the persons, who were occupants of the jeep. Rakesh has been named as driver of the jeep and other two Mahesh and Mukesh @ Polu have been named as occupants. According to the witnesses, they were sitting on the front seat of the jeep. Additional Sessions Judge (Fast Track), Sikar vide impugned-judgment dated 18/07/2007 had convicted the appellant-Rakesh for offence u/S. 302 IPC and Mahesh @ Ramesh with the aid of Section 34 IPC and having convicted the above said appellants for the above said offences by a separate order of even date, had sentenced the appellants, as under:- Rakesh for offence u/S. 302 IPC:- Imprisonment for life and to pay a fine of Rs. 2,000/- and in default thereof to undergo simple imprisonment for six months. Mahesh @ Ramesh:- for offence u/S. 302/34 IPC:- Imprisonment for life and to pay a fine of Rs. 2,000/- and in default thereof to undergo simple imprisonment for six months. Mukesh, who was named as 3rd accused had absconded and we have been informed by the learned counsel for the appellants that till today, he has not been arrested. The present appeal has been filed to assail conviction pronounced and sentence awarded. 7. Dharampal (PW1) in the court deposed that he is running a school named as Swamy Vivekanand Vidhya Mandir near Railway Bridge (pulia), Mandawar Road, Fatehpur. He knew Rameshwar Lal Jat R/o Udnasar, father of Sarita. The present appeal has been filed to assail conviction pronounced and sentence awarded. 7. Dharampal (PW1) in the court deposed that he is running a school named as Swamy Vivekanand Vidhya Mandir near Railway Bridge (pulia), Mandawar Road, Fatehpur. He knew Rameshwar Lal Jat R/o Udnasar, father of Sarita. He further stated that Kurdaram Mali, father of Rakesh was known to him, whose house is also near to the house of Rameshwar. This witness stated that Sarita D/o Rameshwar Lal was known to him, who as 15-16 years old and was student of 10th class in Indian Public School, Fatehpur. This witness stated that Rakesh being neighbour, by deceitful manner intended to entice Sarita. Witness stated that Rakesh was having lust and not love for Sarita. This witness further stated that Rakesh had made a tattoo of the name of Sarita on his chest. This witness further stated that on 04/01/2006 at about 9.30 a.m., he was going from the market to the school, Sarita was also going to attend her school. Occurrence took place opposite to the new machine of Hussain Teli. Rakesh came in a Jeep No. H.R. 24B.4207 and along with Rakesh, Mukesh and Mahesh were also sitting. Rakesh was driving the jeep. When Sarita came near upon the signal given by Mahesh and Mukesh, Rakesh ran the jeep over Sarita even though she ran towards the woods lying by the side of saw machine. Witness stated that accused hit Sarita from the wrong side. In cross-examination, this Witness admitted that his village is at the distance of 10 km. away from Fatehpur. He further admitted that father of the deceased Sarita is his neighbour. In cross-examination, he admitted that he had not narrated the occurrence to Balveer Singh (PW 3), who lodged FIR Furthermore, he had not accompanied the deceased to the hospital. Exact words of witness stated in court are reproduced, as under:- " cyohj ds vkus rd eSa ?kVukLFky ij gh jgkA geus ml le; cyohj dks ?kVuk ds ckjs esa dqN ugha crk;k D;ksafd og le; ,slh ckr djus dk ugha FkkA eSa vLirky lkFk ugha x;kA ,d nks vkneh vLirky lkFk x;s Fks mudk uke eSa ugha tkurkA " This witness further admitted that he, Hemendra and Bhojendra were good acquittance of Rameshwar Lal, father of Sarita. Witness in the court when questioned as to how he had gone to market, he could not give any explanation. Witness In the court has stated, as under:- " eSa ml fnu cktkj D;k dke x;k Fkk esjs dks ;kn ugha] ysfdu eSa Ldwy pykrk gwa blfy, cktkj vkuk tkuk jgrk gSA " He further stated that he, Bhojendra and Hemendra, all three were coming from Mandawar pulla. Other three witnesses namely, Bhojendra Singh (PW2), Hemendra Mahla (PW4) and Mahaveer (PW10) have also deposed In the court on the same lines. 8. Having heard learned counsel for the parties, we find merit In the contention advanced by the learned counsel for the accused-appellants that the conduct of four eye-witnesses viz. Dharampal (PW1), Bhojendra Singh (PW2), Hemendra Mahla (PW4) and Mahaveer (PW10) Is improbable. These four witnesses have neither taken the deceased to the hospital nor they have given information to the police and lodged the report. They have also not relayed Information to the father of the deceased. They have also not accompanied Sarita, who was In an Injured condition and was first got admitted In the Government Hospital at Dhanuka. They have also not accompanied her from Dhanuka to Jaipur wherefrom she was referred for being admitted to SMS Hospital at Jaipur. Presence of all these four eye-witnesses Is a great chance. Without any rhyme or reason, they were present at the place of occurrence. All the four persons have arrived from different places and were present at the spot at the nick of the time when the accident took place. They have furnished no explanation as to how they were present at the place of occurrence to witness the occurrence. These witnesses are not named In the FIR. All the four persons have arrived from different places and were present at the spot at the nick of the time when the accident took place. They have furnished no explanation as to how they were present at the place of occurrence to witness the occurrence. These witnesses are not named In the FIR. This Is equally a great chance that these four witnesses namely; Dharampal (PW1), Bhojendra Singh (PW2), Hemendra Mahla (PW4) and Mahaveer (PW10) uncle of the deceased, all were Introduced later as eye-witnesses of the occurrence, We would have believed the version that they were present by chance, had they done anything at the spot to ensure or prove their presence, To fortify above submission, Shri Anosp Dhand, counsel has rightly relied upon the case In Shankarlal v. State of Rajasthan : 2004 Cr.L.R. (SC) 716 , where It la held that it is not safe to convict the accused on the basis of the testimony of chance witness when his presence at the place of Incident is highly doubtful. The same view was also taken by the division bench of this Court In Mohammad Ishaq v. State of Rajasthan : 2007(1) Cr.L.R. (Raj.) 379 . 9. Having ruled out presence of Dharampal (PW1), Bhojendra Singh (PW2), Hemendra Mahla (PW4) and Mahaveer (PW10) as eye-witnesses, we have to determine as to who caused the accident. Admittedly, the deceased was run ever by jeep bearing No, H.R. 24B-4207. The said jeep was recovered from the spot en the day of occurrence, Investigating agency has net examined any official from the registering authority as to who was owner of the vehicle, Aladeen Khan (PW) investigating officer In cress-examination has admitted that he made ne effort to find out the name of the registered owner, The exact words stated by the witness are as under:- ;g lgh gS fd tc rd esjs ikl rQrh'k jgh eSau ;g tkudkjh tqVkus dh dksf'k'k ugha dh fd bl thi dk jftLVMZ ekfyd dkSu gSA 10. On the pointed queries made, Aladeen Khan, learned Public Prosecutor also could not tell as to who was the registered owner of the vehicle. Once, we rule out the presence of the eye-witnesses and we are not aware regarding ownership of the jeep, it is difficult for us to hold that Rakesh was driving the vehicle. On the pointed queries made, Aladeen Khan, learned Public Prosecutor also could not tell as to who was the registered owner of the vehicle. Once, we rule out the presence of the eye-witnesses and we are not aware regarding ownership of the jeep, it is difficult for us to hold that Rakesh was driving the vehicle. Even though the prosecution alleges motive, but it has not placed any documents on record, no love letter or any other evidence has been brought on record to fortify the assertion that accused was professing his love towards the deceased-Sarita. Even the investigating officer has not stated that he had examined the chest of the accused Rakesh or had found a tattoo there. No photograph of the chest of the accused was also taken. 11. Be that as it may, motive in itself is not sufficient to convict the accused especially when, we have doubted the presence of the eye-witnesses on the scene of occurrence and the prosecution has failed to prove ownership of the vehicle. 12. Consequently, as a result of above discussion, we accept the present appeal by extending benefit of doubt to the accused-appellants, as a matter of abundant caution. 13. As a result thereof, the present appeal is allowed and the impugned-judgment dated 18/07/2007 rendered by Additional Sessions Judge (Fast Track), Sikar in Sessions Case No. 23/2006 (State v. Rakesh & Ors.) whereby, appellants were convicted and sentenced, is set-aside and the accused-appellants - (1) Rakesh S/o Kurdaram and (2) Mahesh @ Ramesh S/o Bhanwarlal are acquitted of the charges for offence u/S. 302 and 302/34 IPC, respectively. The record be sent back to the court below forthwith.Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, the accused-appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees twenty thousand) and a surety bond of the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court. *******