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2001 DIGILAW 30 (RAJ)

Shiv Singh v. State of Rajasthan

2001-01-09

MOHD.YAMIN

body2001
Honble YAMIN, J.–This is a revision against the order of learned Additional Sessions Judge No. 2, Bharatpur dated 25.8.2000 by which he upheld the conviction of the accused petitioner passed by the learned Additional Judicial Magistrate No.2, Bharatpur. The petitioner was convicted and sentenced to three months simple imprisonment with a fine of Rs. 250/-, and in default of payment of fine, to undergo one months simple imprisonment for offence u/S. 279 IPC; and three months simple imprisonment with a fine of Rs. 250/-, and in default of payment of fine, to undergo one months simple imprisonment for offence u/S. 337 IPC; and for offence u/S. 304-A IPC, he was sentenced to one years rigorous imprisonment with a fine of Rs. 500/-, and in default of payment of fine, to undergo three months simple imprisonment. (2). I have heard learned counsel for the accused petitioner, as well as learned Public Prosecutor and also perused the record. (3). The facts of the case in brief may be narrated as follows:- (4). On 26.6.1991, Samunder Singh lodged a report at Police Station Sewar, District Bharatpur to the effect that at about 7.30 p.m. his sons Ravinder and Bharat Singh were returned from the well of Kishan Singh after taking their bath. When they reached their field at the same time tractor No. RRD-7384 along with trolley driven by Shiv Singh came with high speed and dashed against both the children. Ravinder died at the spot as he was crushed by the front wheel and Bharat Singh suffered some injuries. It were Shiv Singh, Phool Singh and Kartar Singh who saw the incident. The police after having registered the case under various sections and challaned the accused petitioner and the learned Magistrate after holding trial convicted the accused petitioner as stated above. He filed an appeal which was dismissed. Hence this revision. (5). Learned counsel for the petitioner submitted that he was conscious that in revisions, reappreciation of evidence can be done only when there are some salient features by which it appear that injustice has been caused and they are brought to the notice of the court. He submitted that in this case the witnesses have stated that there was no fault of the accused petitioner and that the boy suddenly came in front of the Tractor. He submitted that in this case the witnesses have stated that there was no fault of the accused petitioner and that the boy suddenly came in front of the Tractor. With the help of the learned counsel for the petitioner as well as learned Public Prosecutor, I have gone through the entire evidence. (6). The first information report names Shiv Singh, Phool Singh and Kartar Singh as eye witnesses. Shiv Singh, PW. 3 stated that Ravinder and Bharat Singh were coming from the well of Kishan Singh after taking their bath. In his examination-in-chief, he stated that they were walking on their side when the accused petitioner driving the tractor came and dashed against Ravinder but in the very first line of the cross-examination, he stated that at that time he was taking bath at his tubewell which was about 200 yards away. According to him, first of all Samunder Singh came to know about the incident. Neeless to say that when this witness Shiv Singh was taking bath at the distance of about 200 yards, he cannot be said to be present at the site to see the incident. He does admit that there was a boundary of the field and he saw that the deceased himself fell down when he was crossing the boundary and in the meantime the tractor came. As when there are two versions of this witness, the version favourable to accused is to be accepted. (7). Samunder Singh, PW 2 does not mention in the first information report that he had seen the incident but admittedly in the cross-examination that Ravinder fell down from the boundary and the same was about two and half feet high. PW 6 Seria stated that he saw an accident took place and he was present at the distance of about 100 to 150 feet. He admitted in the cross-examination that in order to reach the village, one has to climb over the boundary and he was not aware if the deceased fell down from the boundary. He admitted that he reached after some time and quite a good number of people collected before he reached there. PW 7 Kartar stated that the deceased was walking on his side in the way and that he was himself about 15 to 20 away from Ravinder and that he tried to stop the child. In his statement recorded u/S. 161 Cr. PW 7 Kartar stated that the deceased was walking on his side in the way and that he was himself about 15 to 20 away from Ravinder and that he tried to stop the child. In his statement recorded u/S. 161 Cr. P.C. he stated that he was sitting at the well of Kishan Singh. Then it was not possible for him to be present at the site as stated above. Secondly the witness falsely says that there was no boundary wall while other witnesses have specifically stated that there was a boundary wall which is to be crossed in order to reach the village. The two other witnesses named in the first information report i.e. Phool Singh and Kartar Singh have not been produced on behalf of the prosecution. PW 4 Himmat Singh stated that he was taking bath at the tubewell and at that time Girraj, Phooli, Shiv Singh, Kishan Singh and Seria were also taking bath and at that time a tractor was coming on the way which leads to the village. He does not say that he had seen the occurrence. Phool Singh, PW 5 stated that he had stayed at the tubewell after taking bath and he saw that the deceased dashed against the boundary and fell down and that the tractor came from the back side and crushed the deceased. At that time he was standing at the tubewell. He has admitted in the cross-examination that Ravinder while running dashed against the boundary and fell down and then the tractor came and suddenly the child came under its wheel and was crushed. These witnesses prove that the accident took place not because of the negligence of the accused petitioner but because of sudden fall of victim before tractor. Hence, I find that the accused petitioner has been wrongly convicted. (8). Learned counsel for the petitioner cited Mohammed Aynuddin @ Miyam vs. State of Andhra Pradesh (1), in which it was held that when there is no evidence to show any negligence on the part of the driver, the conviction is not sustainable. He also relied on Mahadeo Hari Lokre vs. The State of Maharashtra (2), in which it has been held that if a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. He also relied on Mahadeo Hari Lokre vs. The State of Maharashtra (2), in which it has been held that if a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. In such a circumstance, the driver cannot save accident. However, slowly he may be driving the therefore he cannot be held to be negligent in such a case. In view of these judgments of the Honble Supreme Court, the petitioner cannot be held liable for the offences under which he has been convicted. (9). Learned counsel for the petitioner also cited Bhanwarlal vs. State of Rajasthan (3), in which a similar situation was noted as Smt. S. wanted to cross the road, unmindful of the fact whether a truck was coming from the opposite direction, and dashed against one side of the vehicle. It was observed that it was true that a person on foot has an absolute right to be on the highway and is entitled to the exercise of reasonable care on the part of a person driving a vehicle on it. But at the same time he or she must take reasonable care of himself or herself. In Om Prakash vs. State of Rajasthan (4), a boy of six and half years old suddenly crossed road and it was held that the truck driver could not be guilty of rash and negligent driving. (10). In view of these citations which if apply to the present case make the accused petitioner entitled for acquittal. (11). Consequently, the revision petition is hereby allowed. The accused petitioner is acquitted from the charges levelled against him. He is in custody and shall be released forthwith if not required in any other case.