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2004 DIGILAW 870 (RAJ)

Ramla @ Ravindra v. State of Rajasthan

2004-06-01

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This criminal revision petition under section 397 Criminal Procedure Code has been filed by the accused-petitioner with a prayer that the order dated 9.5.2002 passed by the learned Additional Sessions Judge, Churu in Sessions Case No.31/2000 (22/2000) by which he ordered that charge for offence under section 304 Indian Penal Code be framed against the present accused-petitioner and in consequence of that, he framed charge for offence under section 304 Indian Penal Code be quashed and set aside and in the alternative, charge for offence under section 304A Indian Penal Code should have been framed. 2. It arises in the following circumstances : (i) That one Bhanwar Lal lodged a written report on 29.2.2000 with the Police Station Bhanipura stating inter alia that on 28.2.2000 his brother Tiloka Ram (hereinafter referred to as 'the deceased') had gone to Sardarshahar in his jeep No. RJ 31-C/1794. It was further stated in the report that on 29.2.2000 at about 1.00 p.m. when he reached near the bus- stand Sehjasar and was taking tea in a shop, the deceased came in his jeep from the side of Sardarshahar and at that time, Banwari Lal was also with him and he stopped the jeep near the turn. It was further stated in the report that thereafter the accused- petitioner came in his Jeep No. HR-20F/2217 and dashed against the jeep of the deceased and when the deceased went near jeep of the accused-petitioner and tried to board the jeep of the accused-petitioner, the jeep of the accused-petitioner capsized and the deceased died on the spot. (ii) On this report, initially the police registered a case under section 304-A and 279 Indian Penal Code, but after usual investigation challan was filed for offence under section 304 Indian Penal Code against the accused-petitioner in the Court of Judicial Magistrate, Sardarshahar on 22.4.2002. (iii) Thereafter the case was committed to the Court of Sessions Judge, Churu and the same was later on transferred to the Additional Sessions Judge, Churn who through impugned order dated 9.5.2002 framed charge for offence under section 304 Indian Penal Code inter alia holding : (a) That offence under section 304 Indian Penal Code was prima facie found proved against the accused-petitioner. (b) That the argument raised by the learned counsel for the accused- petitioner that since LRs of deceased had filed claim petition before the Motor Accident Claims Tribunal, Nohar under section 166 of the Motor Vehicles Act, 1988 and from that fact alone, it cannot be presumed that the case for offence under section 304-A and 279 Indian Penal Code was prima facie made out and that argument was rejected. (iv) Aggrieved from the order dated 9.5.2002, this revision petition has been preferred by the accused-petitioner. 3. In this revision petition, the main submission of the learned counsel for the accused-petitioner is that since FIR No. 8/2000 of the police station Bhanipura was registered for offence under section 279 and 304-A Indian Penal Code and therefore, framing of charge for offence under section 304 Indian Penal Code was absolutely erroneous one and further when the legal representatives of the deceased had filed a claim petition, therefore, framing of charge against the accused-petitioner for offence under section 304 Indian Penal Code was without jurisdiction and hence the impugned order dated 9.5.2002 should be set aside. 4. On the other hand, the learned counsel for the respondent has supported the order dated 9.5.2002 and submitted that same does not suffer from any basic infirmity or illegality and hence does not call for any interference by this Court. 5. Heard and perused the case file. 6. It may be stated hence that the claim petition has been filed by Legal Representatives of the deceased, namely, Chando W/o Tiloka Ram and Devi Lal and Gadu Ram both sons of Tiloka Ram against the accused-petitioner as being driver and against Baldeva Ram owner of the jeep and against United India Insurance Company and there is no dispute on the point that in para No. 12 of the claim petition, it has been mentioned that the accident took place because of rash and negligent driving by the accused- petitioner. 7. Now the question which arises for consideration is whether when the claim petition has been filed by LRs of the deceased and the case was initially registered under section 304A Indian Penal Code, charge for offence under section 340 Indian Penal Code can be sustained or not. 8. 7. Now the question which arises for consideration is whether when the claim petition has been filed by LRs of the deceased and the case was initially registered under section 304A Indian Penal Code, charge for offence under section 340 Indian Penal Code can be sustained or not. 8. Before proceeding further, something should be said about the legal aspect whether in case of accident, negligence of the owner or driver is the sine qua non for such liability or not. 9. Besides no fault liability as provided in Sec.140, the liability of the insurer depends upon the liability of the insured. It is on the contract of indemnity that the insurer is liable to pay compensation only if the insured is liable to pay damages to the claimant. If the insured is not liable, the insurer is also not liable. Now, the liability, direct or vicarious, of the owner of motor vehicle involved in an accident resulting in injury to or death of, a third party to pay damages arises from the law of torts and therefore, it is held that under that law, negligence of the owner or driver is the sine qua non for such liability. 10. It is on the claimant that the burden of proving that the accident was caused by the driver's rashness or negligence lies. 11. It is not necessary, at any rate, that direct evidence is essential for proving the driver's negligence. It may be proved by indirect or circumstantial evidence also. 12. It is not necessary on the part of the Claims Tribunal to take into consideration the police report and the deposition recorded by the police. The accused may be discharge or acquitted in a criminal case but that does not show that the accident did not take a place or that cannot have any repercussion on the finding of the Claims Tribunal on the basis of the evidence and documents on record. The standard of proof in a criminal Court and a civil Court is not the same.EVIDENTIARY VALUE OF FINDINGS OF CRIMINAL COURT 13. The standard of proof in a criminal Court and a civil Court is not the same.EVIDENTIARY VALUE OF FINDINGS OF CRIMINAL COURT 13. The Punjab and Haryana High Court in the case of Municipal Committee, Jullundur v. Ramesh Saggi reported in AIR 1970 (P&H) 137 has held that it will be opposed to fundamental canons of justice and public policy to treat the judgment of the criminal Court binding on a Claims Tribunal trying a claim arising out of a motor accident involving injury or death and this Court is also in agreement with the law laid down by Punjab and Haryana High Court in the case of Municipal Committee (supra) as the views expressed in the case of Municipal Committee (supra) appears to be convincing. 14. In a civil action and a criminal prosecution arising out of the same motor accident involving bodily injury or death, the parties may be different, the issues may not be identical, the nature of onus may vary and the effect of evidence may not be the same. 15. The acquittal of the driver in the criminal case has no bearing on the question of the alleged negligence or involvement of the said driver. As a matter of fact, the finding of the Criminal Court as to an accident is not binding on the Tribunal. 16. The judgment of criminal Court in a prosecution arising out of a motor accident, determining the guilt or innocence of the driver of the motor vehicle is concerned, is neither conclusive nor binding on the Motor Accidents Claims Tribunals and its findings as to guilt or otherwise of the driver are wholly irrelevant for the purpose of the trial on merits of the claim petition before Motor Accident Claims Tribunal. Such judgment can, however, relevant only for the purpose and to the extent specified in Section 43 of the Evidence At. 17. The statement recorded by the police during investigation of a criminal case can be used in a civil proceeding, and if the statement amounts to an admission, it can be used as a piece of substantive evidence. 18. The Hon'ble Supreme Court in the case of Bharat Singh v. Bhagirath reported in AIR 1966 SC 405 observed : "Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Secs. 18. The Hon'ble Supreme Court in the case of Bharat Singh v. Bhagirath reported in AIR 1966 SC 405 observed : "Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Secs. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of the opinion that t7he admissions duly proved are admissible evidence irrespective of whether the party making them appeared as witnesses was confronted with these statements in case it made a statement contrary to those admissions." 19. Thus, an admission becomes a piece of substantive evidence against the person who makes it under sections 17 and 21 of the Evidence Act and that it is not even necessary for the persons relying on it to confront the said admission to the witness who has made it. For this proposition of law, the judgment of Hon'ble Supreme Court in the case of Bishwanath v. Dwarka Prasad reported in AIR 1974 SC 117 may be referred to. 20. Evidence Act has no strict application to proceedings before the Claims Tribunal. This is so because the Tribunal must take special case to see that innocence victims do not suffer because of some doubt here or some obscurity there. 21. The Hon'ble Supreme Court in the case of Hasib v. State reported in AIR 1972 SC 283 has observed that in case of conflict between the FIR version and the case made out in the claim petition, there is no scope to accept the FIR and treat it as substantive evidence without calling for the maker of the said FIR. In case of conflict, the FIR can be used only by way of corroboration or contradiction under section 157 or 145, Evidence Act. 22. Further more, there cannot be any doubt that the nature of proceedings under the Motor Vehicles Act is civil in nature. Though the burden of proving negligence is on the claimant, the burden is not as heavy as in a criminal trial where the rash and negligence has to be strictly proved. 23. The burden lying on a claimant can be discharged by a preponderance of probabilities. The requirement of culpable rashness under section 304A Indian Penal Code is more drastic than negligence under the law o'' torts to create liability. 23. The burden lying on a claimant can be discharged by a preponderance of probabilities. The requirement of culpable rashness under section 304A Indian Penal Code is more drastic than negligence under the law o'' torts to create liability. And save in plain cases, culpability must be inferred in a proceeding before the Claims Tribunal from the circumstances where it is fairly reasonable. 24. In light of the above proposition of law, it can easily be said. (i) That the evidence in a criminal case cannot be used as a basis for discarding the testimony of a witness recorded before the Tribunal itself. (ii) That merely because the claim petition has been filed by the legal representatives of the deceased, therefore, charge under section 304-A should have been framed in place of Section 304 Indian Penal Code in a case where death has resulted in an accident by a motor vehicle cannot be accepted and it is held that each case has to be examined on the facts of each case as proceedings under the Motor Vehicles Act and the proceedings of criminal case are independent and separate of each other and do not cost the jurisdiction of each other. (iii) Even there is distinction between charge under section 304 and 304-A Indian Penal Code as Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under section 299, or murder under section 3 ?. In other words, Section 304-A Indian Penal Code excludes all the ingredients of Section 299 or Section 300. Where intention or knowledge is the motivating force of the act complained of, Section 304-A will have to make room for the graver and more serious charge of culpable homicide. (iv) Thus, it is held that there is no automatic dropping of charge for offence under section 304 Indian Penal Code if for the same accident, claim petition has been filed. (v) It is further made clear that above proposition of law would be applicable only in those cases where death has resulted in an accident by a motor vehicle and claim petition has also been filed for the same accident. 25. (v) It is further made clear that above proposition of law would be applicable only in those cases where death has resulted in an accident by a motor vehicle and claim petition has also been filed for the same accident. 25. Now the question which arises for consideration is whether in the facts and circumstances of the present case, charge for offence under section 304 Indian Penal Code was rightly framed or not or whether charge for offence under section 304A Indian Penal Code is made out against the accused- petitioner or not. 26. That in the present case, since the deceased died because of capsizing of jeep which was being driven by the accused- petitioner and taking into consideration the material available on record, charge under section 304 Indian Penal Code cannot be sustained and in its place charge under section 304A Indian Penal Code should have been framed against the accused-petitioner. Had the deceased would have died because of dashing of jeep by the accused-petitioner, the position would have been different one. 27. The High Court's power under section 397 Criminal Procedure Code should be exercised only when there exists manifest illegality in the judgment or order or there is grave miscarriage of justice. 28. For the reasons mentioned above, in the present case the order dated 9.5.2002 passed by the learned Additional Sessions Judge, Churu suffers from manifest illegality and there is miscarriage of justice and hence the order dated 9.5.2002 passed by the learned Additional Sessions Judge, is liable to be quashed and set aside and this revision petition deserves to be partly allowed.Accordingly, the present revision petition is partly allowed and the order dated 9.5.2002 passed by the learned Additional Sessions Judge, Churu is quashed and set aside and it is ordered that in place of Section 304 Indian Penal Code, the charge under section 304A Indian Penal Code be framed against the accused-petitioner and the learned Additional Sessions Judge, Churu is directed to send the case to the Chief Judicial Magistrate, Churn for trial of the case under section 304A Indian Penal Code.Revision petition partly allowed. *******