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2010 DIGILAW 1011 (RAJ)

Tikama Ram v. State of Rajasthan

2010-05-11

DINESH MAHESHWARI

body2010
JUDGMENT 1. - This revision petition is directed against the judgment and order dated 12.08.1994 as passed by the Additional Sessions Judge, Barmer in Criminal Appeal No. 21/1992 whereby the learned Appellate Judge dismissed the appeal filed by the accused-petitioner and affirmed the judgment and order dated 26.09.1992 as passed by the Judicial Magistrate, Barmer in Criminal Case No. 218/1985 convicting the accused-petitioner for the offences under Sections 279 and 304-A IPC and sentencing him to 6 months' rigorous imprisonment for the offence under Section 279 IPC; and to 1 years rigorous imprisonment with fine of Rs. 500/-; and in default of payment of fine to further rigorous imprisonment for 3 months. 2. The accusations against the petitioner had essentially been that on 24.05.1985 at about 05:00 p.m., with rash or negligent driving of his truck bearing registration number GRX 3677, he caused the death of a pedestrian Harkharam near Gala Nadi at Surta-ki-beri, Police Station Dhorimanna. Upon submission of the charge-sheet after investigating on the report made by PW-5 Mahesharam, the petitioner was charged of the offences under Sections 279 and 304-A IPC. 3. The learned Magistrate, after taking the evidence and hearing the parties, found proved the essential facts that the petitioner, while rashly and negligently driving the vehicle in question hit the pedestrian Harkharam, about 52 years of age, who was crossing the road and who died on the spot. The learned Magistrate found no reason to disbelieve the testimony of PW-2 Rukmanaram and PW-5 Mahesharam, the alleged eye-witnesses to the incident; and, on the facts and in the circumstances of the case, found irrelevant the contention about want of proof of the postmortem report. The learned Magistrate declined the prayer for grant of probation and sentenced the petitioner as aforesaid. The learned Magistrate declined the prayer for grant of probation and sentenced the petitioner as aforesaid. The learned Additional Sessions Judge endorsed the findings of the learned Magistrate and dismissed the appeal filed by the petitioner with the following amongst other observations:- ;|fi vfHk;kstu i{k dh rjQ ls ml MkDVj dks is'k ugh fd;k x;k gS ftlus e`rd Jh gj[kkjke dk iksLVekVZe fd;k gS tSlk fd vihydrkZ ds fo}ku vf/koDrk us viuh cgl ds nkSjku ;g egRoiw.kZ rdZ izLrqr fd;k gS] ijUrq ml MkDVj dks is'k ugh djus ls vfHk;kstu i{kh dh dgkuh ij dksbZ foijhr izHkko ugh iM+ ldrk D;ksafd vfHk;kstu i{k dh rjQ ls tks Hkh izR;{k lk{; vk;h gS muesa ih0MCy0 5 Jh egs'kkjke rFkk ih0MCyw0 2 Jh :de.kkjke us vius c;kuksa esa ;g Li"V :i ls crk;k gS fd vihydrkZ Jh Vhdkjke }kjk viuh V~d rstxfr o ykijokgh ls pykdj e`rd gj[kkjke ds Vddj ekjh ftlls mldh e`R;q gks x;hA 4. Assailing the judgments and orders aforesaid, the learned counsel for the accused-petitioner has strenuously contended that the findings as recorded by the learned courts below are rather of assumptions than of proper appreciation of the record. The learned counsel submitted that the basic facts that the alleged accident occurred with the use of the vehicle in question and that the petitioner had been driving the offending vehicle have not been proved by the prosecution; and for want of proof of such fundamental facts, the entire accusation turn out to be hollow and baseless. The learned counsel has particularly referred to the statements of the alleged eye-witnesses and submitted that there is no such assertion which could be said to be in the proof of the identity of the accused-petitioner as the driver of the offending vehicle. The learned counsel further submitted that the medical officer concerned has not been examined so as to prove the postmortem report and hence, another set of basic facts on the death and cause of death having not been proved, the charge against the petitioner cannot be held substantiated. The learned Public Prosecutor has duly supported the orders impugned. 5. The submissions of the learned counsel have been given a thoughtful consideration and the record has been examined. 6. The learned Public Prosecutor has duly supported the orders impugned. 5. The submissions of the learned counsel have been given a thoughtful consideration and the record has been examined. 6. Though the learned counsel for the petitioner has strenuously argued on the question of identity of the petitioner and the vehicle in question but the submissions essentially turn on appreciation of evidence; and with the subordinate Courts having examined the entire record and having returned the findings with proper appreciation of evidence, there does not appear any case for interference in such findings on facts in this revision petition. Moreover, after having examined the record, this Court is satisfied that the findings do not suffer from illegality or irregularity. PW-2 Rukhmanaram and PW-5 Mahesharam have deposed as being the eye-witnesses to the incident and have indicated the registration number of the offending vehicle and have also pointed out that Tikamaram Jat resident of Sanawada was driving the vehicle in question, who was its owner too. PW-2 Rukhmanaram has categorically asserted that the driver was known to him. It has further been asserted by the said witnesses that they waved at the driver to stop the vehicle after it had hit the victim but the driver did not stop and took the vehicle towards Barmer. The so-called want of specific wordings in the statements of the witnesses, that they were referring to the accused-petitioner Tikamaram alone, is of no bearing or relevance particularly when it is noticed that the petitioner himself chose not to attend the dates of hearing when these material witnesses deposed before the Trial Court; and while seeking exemption, got his attendance marked through the counsel. It is noticed that PW- 2 Rukhmanaram was examined on 23.06.1989 but the petitioner was not present and exemption application was moved on his behalf that was granted; and PW-5 Mahesharam was examined on the next date i.e., 06.10.1989 when, again, the petitioner did not attend the trial; and again an exemption application was moved on his behalf that was granted. In fact, the petitioner, for the reasons best known to him, chose not to attend the trial on a substantial number of occasions and particularly remained absent on the dates when the witnesses were examined. In fact, the petitioner, for the reasons best known to him, chose not to attend the trial on a substantial number of occasions and particularly remained absent on the dates when the witnesses were examined. The petitioner having sought and obtained exemption of attendance through the counsel could hardly be acceded the right to suggest a ground in the revision petition with reference to the want of a few words on pointed identity, which could not have appeared in the text of the statements of the witnesses for want of his physical presence before the Court. The submissions as made on behalf of the petitioner remain detached from realities; and do not make out a case for interference in revisional jurisdiction. 7. The other submission on want of proof of postmortem report does not carry even a technical value what to say of substance. The victim died on the spot as a result of the injuries sustained in the accident; as is apparent from the testimony of the witnesses coupled with the site inspection report Ex. P/4, the site plan Ex. P/7, and the inquest report Ex. P/5. No part of the substance of the charges could be held not proved because of want of medical officers testimony who conducted the postmortem. 8. In an overall analysis, this Court finds no reason to interfere with the conviction of the petitioner for the offences under Sections 279 and 304A IPC. However, so far the aspect of punishment is concerned, it is noticed that the incident occurred way back on 24.05.1985, and the petitioner has been facing this case for about 25 years. The petitioner was about 32 years of age at the time of the incident in question, and has undergone imprisonment for about two weeks after dismissal of the appeal on 12.08.1994 and before he was released after suspension of sentence in this revision petition on 24.08.1994. He did remain in custody for a few days during the trial too for having failed to attend a date of hearing. He did remain in custody for a few days during the trial too for having failed to attend a date of hearing. Even if the plea of probation be not acceded, looking the overall circumstances, this Court is of opinion that no useful purpose would be served with further imprisonment of the petitioner at this length of time; and that interest of justice shall be served if the total sentence of imprisonment for the offences aforesaid be reduced to that of the period of imprisonment already undergone but with imposition and enhancement of fine, to be made available to the heirs of the deceased. 9. Accordingly, this revision petition is partly allowed to the extent indicated above. While the conviction of the petitioner for the offences under Sections 279 and 304-A IPC is maintained, the sentence awarded to him is modified in the manner that he is awarded the sentence of imprisonment in total of the period already undergone but with the fine to the tune of Rs. 1,000/- (one thousand) for the offence under Section 279 IPC and to the tune of Rs. 10,000/- (ten thousand) for the offence under Section 304-A IPC. The petitioner shall undergo rigorous imprisonment for a period of 1 month in default of payment of fine for the offence under Section 279 IPC and for a period of 6 months in default of payment of fine for the offence under Section 304-A IPC. The petitioner shall make payment of the amount of fine within three months from today failing which the Trial Court shall take appropriate steps in accordance with law. Upon deposit of the amount of fine, the same may be paid to the heirs of the victim Harkharam.Revision party allowed. *******