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2001 DIGILAW 1087 (RAJ)

State v. Hawa Singh

2001-07-17

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 25.3.87 passed by the Learned Munsif and Judicial Magistrate, First Class, Sardarshahar in Criminal Case No. 21/86 by which the learned Magistrate acquitted the accused-respondent for the offence under Section 279 and 304A IPC. 2. This appeal arises in the following circumstances : (i) That on 8.1.86 at about 3.30 p.m. P.W.1 Harman lodged an oral report in the police station, Sardar Shahar, Dist. Churu Ex.P/1 stating that on that day at about 11-12 a.m., he and other persons P.W.2 Para and Lalu Ram aged 12 years (deceased) were doing the job of putting soil near Bhadsar as road was being constructed. At that time, two trucks came from the side of Sardar Shahar and they were going towards the side of Bikaner and deceased after putting "Tasla" of soil on his head had gone towards Tiba, when out of the two trucks, one had passed and other truck bearing No.RNG 331, was being driven by the accused appellant and the deceased was run over by said truck and died, in other words the deceased struck himself with left side of the truck. (ii) After investigation, challan was filed against the accused respondent for offence under Sections 279 and 304A I.P.C. 3. The learned Judicial Magistrate read over the contents for offence under Section 279 and 304A I.P.C. on 3.4.86 to the accused, who pleaded not guilty and claimed trial. 4. During trial, four witnesses were produced on behalf of the prosecution and statement of accused was recorded under Section 313 Cr.P.C. and no witness was examined in defence. 5. The learned Magistrate after conclusion of the trial by his judgment dated 25.3.87 acquitted the accused respondents of the said charges inter alia holding that : (i) at the time of accident, the truck in question was being driven by the accused respondent. (ii) That after the accident, the truck was stopped by the accused respondent at about 150-200 feet from the place of occurrence. (iii) it cannot be ruled out when truck was going, the deceased after putting soil would have come on the road suddenly. (iv) the prosecution has not produced 10 nor has exhibited the site plan. (v) the speed of the truck was not high. (iii) it cannot be ruled out when truck was going, the deceased after putting soil would have come on the road suddenly. (iv) the prosecution has not produced 10 nor has exhibited the site plan. (v) the speed of the truck was not high. Hence, he found no case for offence under Sections 279 and 304A I.P.C. 6. Aggrieved from the said judgment, this State appeal has been filed by the State. In this appeal, two submissions have been raised by the learned RP : (i) From the statements of two eye witnesses, namely P.W.1 Harman and P.W.2 Para, the case of prosecution for rash and negligent driving by the accused respondent is well proved and the finding of the learned Judicial Magistrate, therefore, should be set aside. (ii) The principle of res-ipsa-loquitor is applicable in the present facts and circumstances of the case. Hence, acquittal of the accused respondent should be set aside. 7. On the other hand, the learned counsel for the respondent submits that the judgment of the trial court is based on correct appreciation of evidence and thus, the state appeal is liable to be dismissed. 8. In my opinion, the reasons assigned by the learned Magistrate are cogent one and they do not call for interference by this Court as they are based on correct appreciation of evidence. 9. P.W.1 Harman is the eye witness who states that the truck in question was being driven by the accused respondent with slow speed. Thus, from the statement of RW.1 Harman, it cannot be said that the truck was being driven by the accused respondent rashly or negligently. 10. PW.2 Para another witness whose presence has been shown on the place of occurrence has also stated that he cannot say with what speed the truck was going and he has further stated that after the accident, the truck stopped. Thus, from his statement also, it cannot be inferred that the truck was being driven rashly or negligently. 11. The another witness is P.W.3 Ladhu Ram who is father of the deceased. He has stated that back portion of the truck struck with the head of the deceased. It goes to show that deceased suddenly came and struck with the truck. Under these circumstances, it cannot be said that the accident took place by rash or negligent driving of the accused respondent. 12. He has stated that back portion of the truck struck with the head of the deceased. It goes to show that deceased suddenly came and struck with the truck. Under these circumstances, it cannot be said that the accident took place by rash or negligent driving of the accused respondent. 12. Therefore, from the statements of P.W1 Harman and PW.2 Para and PW.3 Ladhu Ram, it cannot be held that collision took place due to rash and negligent driving of the accused respondent. 13. To impose criminal liability under section 304A, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have been the causa sine qua non, as held by Hon'ble Supreme Court in Kurban Hussain Mohammedalli Rangawalla v. State of Maharashtra (AIR 1965 SC 616) .APPLICABILITY OF DOCTRINE OF RES IPSA LOQUITOR 14. The primary reasons for non-application of the abstract doctrine of res ipsa Ioquitor to criminal trials are: in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. In criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubts. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment as held by the Hon'ble Supreme Court in the case of State of Gujarat v. Haidarali Kalubhai reported in AIR 1976 SC 1012 . Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment as held by the Hon'ble Supreme Court in the case of State of Gujarat v. Haidarali Kalubhai reported in AIR 1976 SC 1012 . The argument of learned PP that in the present case this doctrine is applicable to without any force as this doctrine is not applicable in the criminal cases.For the aforesaid reasons, the findings of learned Judicial Magistrate on the basis of which the accused respondent was acquitted of the charges under Sections 304A and 279 I.P.C. are correct and liable to be confirmed as they do not suffer from any infirmity and this Court in state appeal do not want to take a different view.Accordingly, the present appeal is dismissed after confirming the judgment and order dated 25.3.87 passed by learned Munsif and Judicial Magistrate, First Class, Sardarshahar in Criminal case No. 21/86.Appeal dismissed. *******