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2003 DIGILAW 1005 (RAJ)

Ram Gopal v. State of Rajasthan

2003-07-22

RAJESH BALIA

body2003
JUDGMENT 1. - Heard learned counsel for the petitioner as well as learned public 1 prosecutor. 2. The petitioner was convicted by Addl. Munsif & Judicial Magistrate, First Class No. 11, Jaipur City, Jaipur vide his order dated 30th September. 1993 u/ss. 304A and 279 IPC. For offence u/s. 304-A the petitioner was sentenced to one year's rigorous imprisonment with fine of Rs. 100/- and for the offence u/s. 279 he was punished for 2 months rigorous imprisonment and in default to pay the fine he was to further undergo one months simple imprisonment. 3. The written complaint, Ex-14, was made on 19.11.93 by Ishwar Das 10 before the In-charge, Police Station Gandhi Nagar. On the basis of this report, the FIR, Ex.P-15 was registered. The facts of the case are that at about 7.15 PM on 18.11.83 while complainant Ishwar Das along with his friends Teerath Das and Ashok were going on complainant's scooter No. RNB-2636 from Tonk to Jaipur, which was driven by Ashok, suddenly, as mini bus type metador No. RSB-9356 came from the wrong side and hit the scooter, as a result of which all the three persons fell down. The complainant received minor injuries, whereas Ashok and Teerath Das fell down under the scooter and received major injuries. The Metador driver disclosed his name to be Ram Gopal and then he ran away in the darkness. It was stated in the complaint that side by side the complainant and friends on the ill-fated scooter, his other friends Heeranand, Devi Lal and Phoolchand were also coming on motorcycle. The prosecution has examined as many as 9 witnesses of which only one witness Devi Lal, PW-1, was present at the time of incident. Apart from Devi Lal, Radhey Shyam Porwal, PW- 3, who admitted himself to be the owner of the vehicle involved in the accident, has stated that Ram Gopal, Driver, has taken the vehicle on that date. All the other witnesses, who were present at the site, are not the witnesses of happening on site. 4. The trial cowl on the basis of aforesaid evidence found the accused guilty of the offence and sentenced him as aforesaid. The same was affirmed by the learned Addl. District & Sessions Judge No. 2 vide his judgment dated 16.6.94. 5. Aggrieved with the aforesaid conviction and sentence, the petitioner has preferred this revision petition. 6. 4. The trial cowl on the basis of aforesaid evidence found the accused guilty of the offence and sentenced him as aforesaid. The same was affirmed by the learned Addl. District & Sessions Judge No. 2 vide his judgment dated 16.6.94. 5. Aggrieved with the aforesaid conviction and sentence, the petitioner has preferred this revision petition. 6. It is contended by the learned counsel for the petitioner that there is no evidence, firstly, to establish the identity of Ram Gopal as accused, as the person who was driving the vehicle at the time of alleged accident nor there is any evidence on record to show that the vehicle was being driven rashly and negligently at the time of accident. In this connection, attention was invited to the statements of Devilel, PVV-1 and Radheyshyam Porwal, PW-3. Along with the aforesaid oral testimony, the attention was further invited to injury report of complainant Ishwardas, which shows that at the time of his medical examination soon after incident, his mouth was smelling of Alcohol. The another circumstance relied on by the petitioner is that the scooter was carrying three passengers, more than the permissible passengers under law and was being driven contrary to the provisions of Motor Vehicles Act. 7. In view of the facts and circumstances, learned counsel vehemently contended that two courts below have convicted the petitioner, notwithstanding there being no legal evidence to connect the petitioner with the offence with which he has been charged. 8. Learned Public Prosecutor supported the orders under challenge and urged that findings of fact recorded about the guilt of petitioner by two courts below need not be interfered in revision. 9. It is true that ordinarily the findings of fact recorded by the two courts below about the guilt of accused person are not liable to be interfered 10 in revision except there is a legal error in considering the evidence which may have resulted in wrong finding. At the same time, it cannot be doubted that if there is no plausible or legal evidence to bring home the charge against the accused, the findings of fact recorded by the courts below the same must be held to suffer from legal infirmity and cannot bind this Court while exercising jurisdiction u/s. 397 read with Section 401 Cr.P.C. 10. At the same time, it cannot be doubted that if there is no plausible or legal evidence to bring home the charge against the accused, the findings of fact recorded by the courts below the same must be held to suffer from legal infirmity and cannot bind this Court while exercising jurisdiction u/s. 397 read with Section 401 Cr.P.C. 10. In the present case, it may be noticed that it is significant that the complainant Ishwardas, who has lodged FIR, has not been examined nor Hiranand and Phoolchand, who were also stated to be coming along with ill-fated scooter, have been examined by the prosecution. The only witness, which can be said to be eye-witness of the incident was Devilal who has been examined as PW-1. In his entire statement, he has not said a word about the rash and negligent driving of the vehicle, which hit the scooter. On the contrary, about the speed he has not even stated in general terms that the vehicle responsible for causing accident was coming with great speed. Answering question about the speed, with which the vehicle was being driven, he candidly stated that he cannot say at what speed vehicle was being driven. In his cross-examination he has candidly stated that he cannot say that by whose fault the accident has been caused. He has stated that on that date there was heavy crowd at the place of occurrence because there was a show of fireworks organised by Rajasthan Patrika. Many people were going to witness the exhibition. About the identity of driver after saying that on asking, the vehicle driver disclosed his name. However, he does not say what name was disclosed. He also failed to identify that accused present in the Court was the driver. In the court he said: " gekjs iwNus ij mlus uke cryk;k FkkA eSa fuf'pr :i ls ugha dg ldrk fd eqyfte dks igpku ldawxk ;k ughaA gkftj vnkyr eqyfte jke xksiky dh vksj ns[kdj dgk fd ;g rks ugha gksuk pkfg;sA " 11. Apart from the fact that the driver of the vehicle disclosed name to be Ram Gopal whether accused was driver of the vehicle, no other evidence has also come on record. Apart from the fact that the driver of the vehicle disclosed name to be Ram Gopal whether accused was driver of the vehicle, no other evidence has also come on record. In fact, while owner of the vehicle Radheyshyam, PW-3, said that the vehicle was taken by Ram Gopal, no question was asked to him about connecting the identity of Ram Gopal who took the vehicle on the date of incident with the accused who was present in the Court. 12. In these circumstances, no conclusion was possible to reach that accident was caused by the accused or that accident occurred on account of rash and negligent driving by the driver of the vehicle. 13. The other circumstances also supported the conclusion to which I have reached above. The statement of Radheyshyam Porwal, PW-3, was put so to accused u/s. 313 Cr.P.C., which suggestion was denied by the accused. The complainant, who was the necessary witness of the occurrence and involved in the accident, has not been produced at ail in support of the prosecution. His veracity stands further doubted because of his injury report Ex.P-11 in which the Doctor has specifically reported smell of Alcohol coming from the mouth and breath, suggests the passengers of scooter were under influence of Alcohol, who all were friends and coming from Tonk to Jaipur to witness fireworks show. Apparently, this fact is also well established that the s scooter was being driven with three passengers contrary to permissible limit and at least one of them was found to have taken Alcohol. 14. In these circumstances, there being no foundation in evidence to support the findings reached by the two courts below, the conviction on that basis cannot he sustained. 15. Accordingly, the revision petition is allowed. The conviction and sentence passed against the petitioner is set-aside. The petitioner is already on bail, the bail bonds furnished by him may be discharged.Revision Allowed - Conviction Set Aside. *******