JUDGMENT

Pattanaik, J.-The appellant, a truck driver was convicted under Section 302 IPC and was sentenced to imprisonment for life by the learned Additional Sessions Judge, Sri Ganganagar in Sessions Case No. 33 of 1994. On appeal, the said conviction and sentence has been upheld by the High Court of Rajasthan. The present appeal is directed against the said conviction and sentence.

2. The prosecution case in nutshell is that on 26.8.92 at 10.55 p.m., deceased Munir Khan was going on his scooter and the appellant who was the truck driver, intentionally dashed against him and crushed him under the truck, as a result of which, said Munir Khan died. Initially, a case under Section 304A IPC had been registered but later on, charge-sheet was filed under Section 302 IPC and the appellant was convicted under Section 302 IPC, as already stated. PW 4 gave a report at Suratgarh Police Station, Exh. P4 at 11.15 p.m., which was treated as F.I.R. and the police started investigation. On the basis of the said F.I.R., PW 10 registered a case under Section 304A IPC. The investigation was then handed over to PW 15, who rushed to hospital and learnt that the injured had died and, therefore, the case was converted to one under Section 302 IPC. PWs 5, 6 and 8 are supposed to be the eye witnesses to the occurrence. According to the prosecution case, the accused had some dispute with one Mohan Singh and in a panchayat held, it was settled that Mohan Singh will pay some compensation to the accused and victim Munir Khan guaranteed for the payment, but as no money was paid and the guarantor did not discharge his obligation, the accused took the extreme step of taking away his life. Of the three eye witnesses, examined by the prosecution, the trial judge disbelieved PWs 6 and 8 but relied upon the evidence of PW 5 and the motive as already stated, and came to the conclusion that the accused committed murder of the deceased by crushing him under his truck. Though the prosecution also relied upon the extra-judicial confession alleged to have been made by the accused to PW 3 but the learned Sessions Judge as well as the High Court did not rely upon the same and excluded the so-called extra-judicial confession from the purview of consideration. The High Court apart from relying upon PW 5 also relied upon PWs 6 and 8 in arriving at the conclusion that the case is one of murder.

3. Mr. Sushil Kumar, learned senior counsel for the appellant contended before us that the evidence of the three eye-witnesses PWs 5, 6 and 8 could not have been relied upon in view of several material omissions in their statement recorded under Section 161 Cr.P.C. and the courts committed error in relying upon the same. The learned counsel further contended that even if the evidence of PW 5 is relied upon, who saw the accused getting down from the truck and running away from the place of occurrence, then at the most the offence can be said to be one under Section 304A and not under Section 302 inasmuch as it is difficult to hold that the accused appellant, intentionally crushed the deceased under his truck.

4. Mr. U.R. Lalit, learned senior counsel, appearing for the informant and Mr. S.K. Jain, appearing for the State, on the other hand contended that the High Court rightly relied upon the evidence of PWs 6 and 8, who categorically indicate that the accused was waiting for the deceased to come by the road and then as soon as he saw the deceased coming on scooter, the accused crushed him under his speeding truck and, therefore, the offence is one of murder and conviction under Section 302 is unassailable. According to Mr. Lalit, the motive having been established namely the deceased was the guarantor and yet could not make the necessary payment to the accused and the accused having a grudge on that score and the circumstances under which the truck ran over the scooter, clearly establishes the fact that the accused intentionally killed the deceased and it is not a case of rash and negli