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2010 DIGILAW 515 (MP)

Rajesh v. State of M. P.

2010-05-04

J.K.MAHESHWARI

body2010
Judgment ( 1. ) This petition has been filed under section 397 read with section 401 of CrPC against the judgment dated 29/4/2010 by the Second Additional Sessions Judge, (Fast Track) Alirajpur. In Cr. A.No. 50/2009, whereby the judgment dated 20/11/2009 passed by the JMFC, Alirajpur, in Criminal Case No. 1270/2006 has been confirmed. ( 2. ) The two Courts have found that the applicant is guilty for the charge of an offence under section 304A of IPC and directed to undergo one year RI with fine of Rs. 2,000/- for the offence under section 279 of IPC 1 year RI with fine of Rs. 100/-, for the offence under section 337 of IPC two months RI with fine of Rs. 500/- and under sections 3/181 and 196 of Motor Vehicles Act Rs. 200/ - and Rs. 300/- respectively. ( 3. ) Case of the prosecution was that on 1.6.1998 at about 7.30 hour forest guard along with complainant Mangilal was coming on the motorcycle of Rangji from Vikram Sendwa. Near Village Chhaktala at Bakhtgarh Road accused/applicant Rajesh was going on motorcycle bearing registration No. GJ 06 E- 8751 from wrong side and collided with the motorcycle of Rangji who was also coming with two other persons. On account of said accident Rangji died on the spot and two other persons namely Mangilal and Vikram sustained injury. Case was registered against the applicant for the offence under sections 279,337 and 304 A of PC and the Challan was filed by adding offence under sections 3/181 and 196 of Motor Vehicles Act. After framing of charges and also after recording of evidence, applicant was convicted as stated above, against which the present revision petition has been filed. ( 4. ) Learned counsel appering on behalf of the applicant submits that the accident is not in dispute, looking to the fact that such accident is in between two motor cycles who were collided with each other. In such a case higher negligence is required to be proved, which has not been established by the prosecution. He has drawn attention of this Court towards the statement of complainant Mangilal, who has not supported the prosecution story, ultimately, the conviction has been directed on the basis of other evidence as well as on the basis of statement of Investigating Officer. He has drawn attention of this Court towards the statement of complainant Mangilal, who has not supported the prosecution story, ultimately, the conviction has been directed on the basis of other evidence as well as on the basis of statement of Investigating Officer. Reliance has been placed on the judgment of this Court in the case of Kamal Daroi v. State of M.P. 2005 (II) MPWN 87 = 2005 (4) MPLJ 157 and it is urged that considering the ratio of the said judgment the applicant deserves to be acquitted. ( 5. ) It is voluntarily submitted by Shri Solanki, counsel appearing on behalf of applicant that the applicant is ready to pay some amount by his own to the members of the bereaved family of deceased, which he offered to the extent of Rs. 40,000.00 and Rs. 5,000.00 to each of the injured persons. It is urged that as per section 71 of the IPC, once the punishment has been offered under section 304A of IPC then for a petty offence under sections 279 and 337 of IPC the conviction should not be directed by the trial Court. In view of the said it is urged that the conviction as directed by the two Courts below may be ordered to be set aside. ( 6. ) On the other hand Shri Couhan, G.A. opposes the prayer and supported the findings as recorded by the trial Court. It is urged that one person has been died and three other persons were injured only because of rash and negligent driving of the applicant, however, the finding of conviction has rightly been recorded by the trial Court. ( 7. ) After having heard learned counsel for the parties and after due consideration of the statement of complainant Mangilal, who is also one of the injured persons and not supported the prosecution case, it does not reveal to the Court that higher degree of rashness and negligence to prove the accident is available in the fact of the present case. In the case of Kamal Daroi (supra) this Court has acquitted the accused because the higher decree of negligence was not established by evidence. ( 8. ) In the facts of the present case and after going through the entire evidence available on record, I am of the opinion that the applicant is entitled to get benefit of such judgment. In the case of Kamal Daroi (supra) this Court has acquitted the accused because the higher decree of negligence was not established by evidence. ( 8. ) In the facts of the present case and after going through the entire evidence available on record, I am of the opinion that the applicant is entitled to get benefit of such judgment. As per the evidence higher degree of negligence has not fully been established, therefore, the judgment passed by the two Courts below convicting the applicant for the offence under Sections 304A and 337 of IPC is hereby set aside. It is to be observed here that Section 71 of the IPC specifies that if the accused/applicant has been punished for the higher offence, for the same offence conviction is not required to be passed. Therefore, the charge under Section 279 of IPC no punishment can be offered, once the charge under Sections 304Aand 337 of IPC has not been established. Consequentially, the charge under Section 3/181 and 196 of MV Act is also hereby set aside. ( 9. ) Accordingly, this revision is allowed. The judgments passed by the Courts below are hereby set aside. The applicant is acquitted of the charges as alleged against him. Applicant is in jail, and in consequence of acquittal of the applicant he be released by issuing release warrant. However, it is hereby observed that the amount as voluntarily offered to pay to the members of the bereaved family and to the injured Rs. 40,000/- and Rs. 5,000/- to each of the injured be deposited by the applicant within a period of one month from today, in the Court of Judicial Magistrate First Class, Alirajpur. On having deposit of the said amount by the applicant the step be taken by the Court by their own to disburse such amount to the members of the bereaved family of the deceased and to the injured persons by taking assistance from the record and with the help of police authorities. After due verification the said amount be released in their favour. It is made clear here that the intimation regarding disbursements of the deposited amount to the concerning persons the report be sent by the Magistrate to the Principal Registrar of this Bench.