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2005 DIGILAW 1120 (RAJ)

Abdul Rahim v. State of Rajasthan

2005-04-12

H.R.PANWAR

body2005
Judgment H.R. Panwar,J.-This criminal revision petition under Section 397 of the code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the Judgment and order dated 18.02.2005 passed by Additional Sessions Judge (Fast Track) No.1, Pali, Camp Jaitaran (for short the appellate Court) in Criminal Appeal No. 29/2005 whereby the appellate Court dismissed the appeal filed by the petitioner against the Judgment and order dated 14.07.2000 passed by judical Magistrate, Jaitaran (for short the trial Court) in Criminal Case No. 763/96 (223/95) whereby the trial Court convicted the accused-petitioner for the offences punishable under Sections 279, 337 338 and 304-A, I.P.C. and sentenced him to undergo six months simple imprisonment and fine of Rs. 500/-, in default of payment of fine, further to undergo 15 days simple imprisonment for the offences under Sections 279 and 337. He was also sentenced to undergo one years simple imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine further to undergo one months simple imprisonment to the offence punishable under Section 338, IPC and to undergo two years simple imprisonment and fine of Rs. 3,000/-, in default of payment of fine further to undergo three months simple imprisonment for the offence punishable under section 304-A, IPC. All the sentences were ordered to run concurrently and fine of Rs. 2,500/-was ordered to be paid to the legal representatives of each deceased person. Aggrieved by Judgment and orders impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the the Judgment and orders impugned. I have carefully gone through the record of the trial Court. 3. Briefly stated facts of the case relevant and necessary for decision of the revision petition are that PW. 3 Yusuf lodged first information report Ex. P/2 with Police Station, Anandpur Kalu, Distt. Pali, inter alia, alleging there in that his younger brother Sikandar was working in D.L.F. Factory. He, alongwith other labourers, was traveling in a truck bearing No. RJ-20-G0870. Due to rash and negligent driving of the truck by its driver, the truck suddenly capsized and his younger brother Sikandar succumbed to injuries on the spot and many others suffered injuries. On this information, police investigated the matter and filed a challan against the petitioner for the offences noticed above. Due to rash and negligent driving of the truck by its driver, the truck suddenly capsized and his younger brother Sikandar succumbed to injuries on the spot and many others suffered injuries. On this information, police investigated the matter and filed a challan against the petitioner for the offences noticed above. Before the trial Court, the prosecution produced PW.1 Jeevan Ram, PW. 2 Sadul Ram, PW. 3 Yusuf , PW. 4 Narsingh, PW. 5 Shivnath, PW. 6 Jeevan, PW. 7 Poonjilal, PW. 8 Jagdish, PW. 9 Heeralal, PW. 10 Sajan Singh, PW. 11 Ghanshyam, PW. 12 Ganeshji, PW. 13 Jagdish s/o Sonaram, PW.14 Meera and PW.15 Sona Ram and produced the documents Ex.P/1 to Ex. P/16 Accused made statement under Section 313 of the Code and produced DW.1 Manjoor Ali as a defence witness. the trial Court on appreciation of the evidence produced by the prosecution, many of whom are injured eye-witnesses of the occurrence, and relying on documentary evidence including the notice sent to the owner of the vehicle under Section 133 of the Motor Vehicles Act (for short the M.V. Act), came to the conclusion that prosecution has been able to establish the case against the accused-petitioner beyond reasonable doubt and he was accordingly convicted and sentenced as noticed above. 4. On appeal, the appellate Court on reappreciation of the evidence, by an elaborate and well reasoned Judgment came to the conclusion that the trial Court was justified in convicting and sentencing the petitioner for the offences noticed above. 5. It is contended by the learned Counsel for the petitioner that in the first information report Ex.P/2, the accused-petitioner has not been named by PW. 3 Yusuf . It is further contended that PW.15, Sona Ram the Investigating Officer stated that in the statements of various witnesses recorded by him, name of the driver had not been disclosed and lastly it was contended that the truck was being driven on tarred road but suddenly it turned on "Kachcha Road" and due to rainy water, the truck capsized resulting in the said accident. So far as non mentioning of the name of the petitioner in the first information report is concerned, PW . 3 is not an eye-witness of the occurrence. So far as non mentioning of the name of the petitioner in the first information report is concerned, PW . 3 is not an eye-witness of the occurrence. On receiving information that his brother, who was travelling in the said truck, succumbed to injuries due to rash and negligent driving of the truck by its driver, he lodged the report to the police. There are number of injured eye-witnesses, who in their statements under Section 161 of the Code as well as before the trial Court, clearly stated that it was the petitioner, who was driving the truck at a great speed and negligently as a result of which the truck capsized and the occupants of the truck suffered injuries. PW. 4 Narsingh, PW. 6 Jeevan and PW. 7 Poonji Lal are the witnesses, who in their statements under Section 161 of the Code as also before the trial Court, clearly stated that it was the petitioner, who was driving the truck at the great speed and negligently. Thus, the statements of PW. 15 Sonaram, the Investigating Officer runs contrary to the record. It is noteworthy that statements of these witnesses namely Narsingh, Jeevan and Poonji under Section 161 of the Code were recorded by PW.15 Sonaram and the petitioner was identified by them. PW. 4 Narsingh was examined on 27.03.1997 and at that time the accused, who was present in Court, was identified by him. Even this witness was not subjected to any cross-examination so far as identification of present petitioner is concerned. PW. 6 and PW. 7 also made similar statements and named the present petitioner and the petitioner was also identified in the Court by these witnesses as the accused was present in Court when these witnesses were examined by the trial Court. Nothing has come from their statements, which may create any doubt regarding identity of the petitioner. So far as PW .7 Poonji Lal is concerned, he had also identified the petitioner as the driver of the truck. This witness was also not subjected to cross-examination so far as identification is concerned. Notice Ex.P/43 under Section 133 of the M.V. Act was served upon the petitioner as the petitioner was the driver as well as owner of the truck. This witness was also not subjected to cross-examination so far as identification is concerned. Notice Ex.P/43 under Section 133 of the M.V. Act was served upon the petitioner as the petitioner was the driver as well as owner of the truck. The petitioner himself admitted in reply to the notice under Section 133 of the M.V. Act that on 12.07.1995 at about 8.00 A.M., he was driving the truck in question. This incriminating evidence Ex.P/43 was specifically put to the accused in the statement of accused petitioner and in his statement under section 313 of the Code but he stated that he does not know ¼^irk ugh*½. Even otherwise, there are number of injured eye-witnesses who clearly stated that it was the petitioner, who was driving the truck rashly and negligently as a result of which on the curve, it capsized causing injuries to injured prosecution witnesses. The injuries suffered by eye-witnesses have been proved by their statements and medical evidence. Even post-mortem reports of deceased Sikander Ex.P/4 and Pappu Ex.P/27 and injuries reports Jeewan Ram S/o Hajari Ram Ex. P/4, Poonji Lal, Heera Lal Ex. P/9, Chiman Singh Ex. P/10, Ghanshyam Ex. P/17, Ram Bilas Ex. P/18, Jagdish Ex. P/19, Meera Ex.P/20, Motilal Ex.P/21, Narsingh Ex.P/22, Sakir Khan Ex.P/23, Somesh Ex.P/24, Jagdish Ex.P/25 and Prabhu Singh Ex.P/26 have also been admitted by the accused-petitioner. 6. It was next contended by the learned Counsel for the petitioner that the offence under Section 304-A, IPC, is punishable with imprisonment of 2 years and fine or both. In the instant case, both the Courts below sentenced the petitioner for a maximum sentence awardable for the offence under Section 304-A, IPC. Learned Counsel submits that the occurrence is of 12.07.1995 and almost 10 years have since elapsed and the petitioner has faced the protracted trial in appeal as also the present revision. He has already suffered mental agony and financial loss in defending the case against him and, therefore, the sentence of imprisonment awarded to him may be reduced. 7. I have given my thoughtful consideration to the submissions made by the learned Counsel for the petitioner. The petitioner is a young person and there being no previous conviction to his credit. Sentence of imprisonment awarded appears to be slightly on higher side. 8. 7. I have given my thoughtful consideration to the submissions made by the learned Counsel for the petitioner. The petitioner is a young person and there being no previous conviction to his credit. Sentence of imprisonment awarded appears to be slightly on higher side. 8. Having close scrutiny of the record and the statements of the prosecution witnesses, I am of the view that the trial Court as well as the appellate Court have correctly appreciated the evidence on record and there is no error, illegality or perversity therein in convicting the petitioner which may warrant interference in revisional jurisdiction. 9. Consequently, the revision petition is partly allowed. While maintaining the Judgment and order of conviction, the substantive sentence awarded to the petitioner for the offence under Section 304-A, IPC is reduced to 18 months but the sentence of fine of Rs. 3,000/-awarded to the petitioner is enhanced to Rs. 10,000/-, in default of payment of fine, the petitioner shall further undergo three months imprisonment. The sentence awarded for the offences under Sections 279, 337 and 338, IPC are maintained. On depositing of fine, a sum of Rs. 5000/-each be paid to the legal representatives of the deceased persons as compensation. 10. The application seeking suspension of sentence also stands dismissed.