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Madhya Pradesh High Court · body

2009 DIGILAW 516 (MP)

Ashok Pawar v. State of M. P.

2009-04-18

A.K.SHRIVASTAVA

body2009
ORDER 1. This revision application has been filed by the applicant-accused against the judgment of his conviction and order of sentence passed by learned trial Court convicting him under section 304-A of IPC and thereby sentencing him to suffer one year rigorous imprisonment and fine of Rs. 2,000/- in default further RI of 3 months which has been affirmed by learned appellate Court by dismissing his appeal. 2. In brief, the case of prosecution is that on 27.10.1993, at 8 p.m., Shankerlal (hereinafter referred to as 'deceased') was carrying and driving his hand cart in front of MPEB barrier. His wife Bhulibai was also accompanying him. One Sukhlal was also driving his hand cart behind the deceased. At that juncture, a truck bearing registration number MP24C/1638 which according to the prosecution, was being driven by applicant rashly and negligently came and hit the deceased, as a result of which he (deceased) became injured. The applicant himself brought the deceased to the hospital, where he was declared dead by the doctor. The incident was reported to police by Bhulibai, who is the wife of the deceased and on the basis of the report of said Bhulibai, a case was registered against the applicant under section 304A of IPC. 3. On lodging of the FIR, the criminal law was set in motion. The investigating agency sent the dead body for post mortem; prepared the spot map; seized the necessary articles; recorded the statement of the witnesses and arrested the accused. After the investigation was over, a charge sheet was submitted. 4. The learned trial Court on going through the allegations made against the applicant in the charge sheet, framed charge punishable under section 304-A of IPC, which he denied and requested for the trial. To prove the charge, prosecution examined as many as four witnesses and placed exhibit P-1 to P-5, the documents on record. The defence of applicant is of false implication. However, in support of his defence, he did not examine any witness. 5. The learned trial Court after examining the evidence, came to hold that charge is proved and eventually convicted the applicant under section 304-A of IPC by passing the sentence, which have already been mentioned hereinabove. The defence of applicant is of false implication. However, in support of his defence, he did not examine any witness. 5. The learned trial Court after examining the evidence, came to hold that charge is proved and eventually convicted the applicant under section 304-A of IPC by passing the sentence, which have already been mentioned hereinabove. The appeal which was filed by the applicant assailing the judgment of conviction and order of sentence passed by the trial Court has also been dismissed by impugned judgment passed by learned appellate Court. In this manner, this revision application has been filed by the present applicant assailing the judgment of conviction and order of sentence passed by learned two Courts below. 6. The contention of learned counsel for the applicant Shri Tiwari is that in order to prove the offence under section 304-A of IPC, it was imperative on the part of the prosecution to prove that the truck was driven by the applicant rashly and negligently. According to learned counsel, there is no iota of evidence in order to demonstrate that the applicant ever drove the alleged offending vehicle rashly and in negligent manner and if that is the position, according to learned counsel, learned two Courts below erred in law in convicting the applicant for the offence under section 304- A of IPC. 7. Combating the aforesaid submissions of learned counsel for the applicant, Shri Gupta, learned counsel for the State argued in support of the impugned judgment and has submitted that learned two Courts below after appreciating and marshalling the evidence came to hold that it was applicant who drove the offending vehicle rashly and negligently and therefore applicant has been rightly convicted. The contention of learned counsel for the State is that this revision application be dismissed. 8. Having heard learned counsel for the parties, I am of the view that this revision application deserves to be allowed and the applicant is entitled for acquittal. 9. It has been rightly submitted by Shri Tiwari, learned counsel for the applicant is that in order to attract the provision of section 304-A of IPC, it was incumbent upon the prosecution to prove that the applicant drove the truck in rash or negligent manner. 9. It has been rightly submitted by Shri Tiwari, learned counsel for the applicant is that in order to attract the provision of section 304-A of IPC, it was incumbent upon the prosecution to prove that the applicant drove the truck in rash or negligent manner. By keeping in mind this essential ingredient in order to hold the applicant to be guilty of the said offence, I may see whether any cogent evidence has been placed on record in that regard or not. 10. In order to prove the factum of rash and negligent driving of the applicant, the prosecution has examined two witnesses, they are Bhulibai (PW 2), who is the wife of the deceased and Sukhlal (PW 3), who is another eye witness and who was also carrying and driving his hand cart behind the deceased. On close scrutiny of the testimony of Sukhlal, particularly, his cross-examination, this Court finds that in very specific words this witness has stated that the speed of the truck was very slow. However, he has stated that how the incident had occurred, he cannot say. The factum of driving the truck in high speed has not been stated by Bhulibai (PW 2) also. On x-raying the testimony of this lady, this Court finds that this witness was going ahead and behind her the deceased was driving his hand cart. The evidence of these two eye witnesses is totally silent in respect to the factum of offending truck being driven in a high speed and, therefore, it is not proved that while driving the truck, the applicant was rash and negligent. 11. The learned first appellate Court in para 9 and 12 of the impugned judgment has held that although PW 3 is saying that the truck was being driven by the applicant in low speed, but, there is positive evidence of Bhulibai (PW 3) that the same was being driven in high speed. On going through the testimony of Bhulibai, I do not find such type of evidence, on the contrary, she is unable to say whether the truck was being driven at a speed of 10 km or 40-50 kms per hour. On going through the testimony of Bhulibai, I do not find such type of evidence, on the contrary, she is unable to say whether the truck was being driven at a speed of 10 km or 40-50 kms per hour. Hence, the finding of Courts below holding that the truck was being driven in a high speed by the applicant and he drove the truck rashly and in negligent manner, is perverse, since it is not based on no evidence. Since, the factum of rash and negligent driving of the applicant is not proved from any of the prosecution witness, I am of the view that the learned two Courts below erred in convicting the applicant under section 304-A of IPC. 12. Resultantly, this revision application succeeds and is hereby allowed. The judgment of conviction and order of sentence, convicting the applicant under section 304-A of IPC by two Courts below is hereby set aside and the applicant is hereby acquitted from the said charge. The amount of fine, if deposited, be refunded to the applicant.