JUDGMENT :

VIVEK KUMAR SINGH, J.

1. Assailing the judgment of conviction dated 05.08.1997 passed by Fifth Additional Sessions Judge, Bhopal, District Bhopal (M.P.) in S.T. No.135 of 1996 whereby each of the accused/appellants have been convicted for offence punishable under section 302/34 of IPC and sentenced to undergo Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount to suffer additional rigorous imprisonment of 06 months.

2. Prosecution story in short is that on 02.02.1996 at about 2:00 P.M. deceased Sarvar Ali Khan was riding his Scooter near Barkhedi Tola, where a truck bearing Registration No.MOU 1446 driven by appellant no.1/Lakhan Maharaj, accompanied by appellant no.2/Suresh Sharma and other co-accused Chanderlal (not a party in this appeal) rammed him from the opposite direction. The said collision threw Sarvar Ali Khan from his scooter and he succumbed to the injuries thus sustained.

3. Learned counsel for the appellants submits that they are innocent and have been falsely implicated in the present case. Learned counsel for the appellants further submits that the eye-witnesses are unreliable and they are “made up” witnesses and learned trial court has relied upon the testimonies of eye-witnesses namely Abdul Majid (PW-1), Mohammad Imran (PW-2) and Shahid Khan (PW-14) while passing the judgment. Their testimonies are full of contradictions and omissions. Thus, it is submitted that the collision of scooter and truck was neither with any premeditation nor has any motive to commit murder of the deceased. It is further submitted that once the accused persons stood acquitted of Section 120B of IPC, there was no longer any mens rea or motive remaining to prove as noted by the Court below that there was indeed a criminal conspiracy. He further submits that the driver/appellant no.1-Lakhan Maharaj tried his best to avert the collision of truck with the scooter. As a matter of fact, the presence of 30 ft. long skid mark from the truck’s tyre clearly suggests that driver tried his best to avert the collision. Furthermore, driver’s act of stopping the truck and fleeing on bare foot, leaving behind all the important documents carrying his name inside the truck itself shows that the collision was accidental and not premeditated one and in panic, the driver left behind all the important documents containing his name and address. He further submits that prosecution has failed to prove or substantiate the common intention and hence in absence of any proof of the same, Section 34 cannot be attracted.

4. In support of his arguments, learned counsel for the appellants relied upon catena of judgments of Hon’ble Supreme Court rendered in the cases of Bhagwan Jagannath Markad & Ors. Vs. State of Maharashtra, (2016) 10 SCC 537; State of Punjab Vs. Jagir Singh, (1974) 3 SCC 277; Prabhakaran Vs. State of Kerala, (2007) 14 SCC 269; State of Punjab Vs. Balwinder Singh & Ors. (2012) 2 SCC 182; Gulabsing Sureshsing Sisodiya Vs. State, (2018) SCC Online Bom 5172 and Durga Burman Roy Vs. State of Sikkim, (2014) 13 SCC 35.

5. Learned counsel for the appellants submits that if the prosecution evidence is believed, then at the most, the case would fall under Section 304A of the IPC and not under Section 302/34 IPC. He also pointed out towards the ingredients of Section 304A of the IPC, which is reproduced below for ready reference :-

“304A. Causing death by negligence –

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

6. Learned counsel for the appellants further submits that appellant no.1 - Lakhan Maharaj has served actual sentence of 01 year, 07 months and 13 days and appellant no.2 - Suresh Sharma has served actual sentence of 03 months and 05 days. Therefore, prayer is made to allow the instant appeal and acquit the appellants of the ch