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2011 DIGILAW 425 (RAJ)

Rahim v. State of Rajasthan

2011-02-24

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - This revision petition has been filed by petitioner Rahim against the appellate order dated 08.12.1994 passed by the learned District and Sessions Judge, Jaisalmer, whereby the learned appellate court dismissed the Criminal Appeal No. 12/1994 and upheld the judgment of conviction and order of sentence dated 20.09.1994 passed against the petitioner in Criminal Original Case No. 536(A)/1993, whereby the the accused-petitioner was convicted for the offence under Section 304-A IPC and sentenced to undergo simple imprisonment for one year alongwith a fine of Rs. 5000/- and in default of payment of fine, further to undergo simple imprisonment for two months. The learned trial court further ordered that out of the fine amount of Rs. 5000/-, Rs. 4000/- will be paid to the legal heirs of the deceased as compensation. 2. The facts of the case are that on 19.09.1993 P.W.1 Bhanwar Ram lodged an oral report at the Police Station Jaisalmer to the effect that in the morning of that day at about 9.30 a.m. one jeep bearing No. RJ-21-C-0273 came from the Kishanghat side at fast speed and the driver of the jeep while driving the jeep rashly and negligently caused accident with Khamana Ram, the brother of the complainant, who was standing about 4 to 5 feet away from the road. By hitting Khamana Ram fell down and the wheel of the jeep ran over his chest due to which his limbs were cut down. Khamana Ram was brought to the hospital, where he was declared dead. 3. On the basis of the aforesaid oral report, First Information Report No. 210/1993 under Section 279 and 304-A was registered and after due investigation, a charge-sheet was filed against the accused-petitioner in the court of Chief Judicial Magistrate, Jaisalmer. During the course of the trial, to prove the guilt of the accused the prosecution examined six witnesses, out of whom P.W.1 Bhanwaru Ram, P.W.2 Chhagan Lal and P.W.3 Narsingha Ram were the eye-witnesses, P.W.4 Damodar Singh deposed about conducting the investigation, P.W.5 Ramnarayan Choudhary deposed about the recovery of the jeep by the police and P.W.6 Kisturchand was the witness who conducted mechanical inspection of the jeep involved in the accident. The statement of the accused was recorded under Section 313 CrPC and after hearing both the parties and considering the evidence on record, the learned trial court vide judgment and order dated 20.09.1994 convicted and sentenced the accused-petitioner as indicated above. Further the judgment of the learned trial court was affirmed by the appellate court by order dated 08.12.1994. 4. The learned counsel for the accused-petitioner contended that the place of the incident as deposed by the eyewitnesses did not coincide with the site inspection memo (Ex.P.1), therefore, it cannot be said that all the three eye-witnesses, namely, P.W.1 Bhanwaru Ram, P.W.2 Chhagan Lal and P.W.3 Narsingha Ram witnessed the incident, therefore, their evidence as eye-witnesses cannot be believed. He further contended that all the eye-witnesses were either the relatives of the deceased or were of the same caste as that of the deceased and were interested witnesses, therefore, their testimony cannot be relied upon and the learned trial court committed grave illegality in convicting the accused-petitioner while relying upon the statements of the three eye-witnesses. Learned counsel for the accused-petitioner further contended that in mechanical inspection, the controls of the vehicle were found to be in order as per Ex.P.7 report, therefore, the question of negligence does not arise because had there been any accident caused by the vehicle, there would have been signs of accident or some mechanical disorder in the jeep involved in the accident. 5. Per contra, learned Public Prosecutor contended that the First Information Report (Ex.P.1), which is handwritten report of P.W.1 Bhanwaru Ram, bears the names of the eyewitnesses Chhagan Lal and Narsingha Ram, therefore, it cannot be said that the names of the eyewitnesses have been concocted at a later stage and further their presence was natural at the scene of occurrence because they were also working at their mines and further the accused-petitioner himself brought the injured to the hospital, therefore, the identification cannot be disputed. 6. I have perused the statements of the witnesses with reference to the arguments advanced by both the parties. P.W.1 Bhanwaru Ram, P.W.2 Chhagan Lal and P.W.3 Narsingha Ram, all the three eyewitnesses deposed that the jeep was being driven by accused-petitioner Rahim Khan rashly and negligently and all the three eyewitnesses corroborated the evidence of each other and there are no material contradictions in their statements. P.W.1 Bhanwaru Ram, P.W.2 Chhagan Lal and P.W.3 Narsingha Ram, all the three eyewitnesses deposed that the jeep was being driven by accused-petitioner Rahim Khan rashly and negligently and all the three eyewitnesses corroborated the evidence of each other and there are no material contradictions in their statements. Further their statements could not be shattered in the cross-examination also and their oral evidence is corroborated by the site inspection memo (Ex.P.1). As per the site inspection memo (Ex.P.1), there were signs of tyres at 'B' place and it is clear from the site inspection memo (Ex.P.1) that the jeep turned to its right side which was wrong side and then caused the accident with deceased Khamana Ram who was standing near his Akhali. The appreciation of the evidence of all the three eyewitnesses alongwith the site inspection memo (Ex.P.1) as made by the learned trial court was proper and it cannot be said to be perverse, illegal or improper, therefore, the judgment of conviction passed by the learned trial court as affirmed by the appellate court does not require any indulgence at this stage while exercising the powers under Section 397/401 CrPC. Accordingly, the judgment of conviction passed by the learned trial court is maintained. 7. Now coming to the question of sentence, the learned counsel for the accused-petitioner contended that by rejecting the bail application vide order dated 08.12.1994, the accused was sent to the judicial custody and again he was released on 26.12.1994, thus, he remained behind the bars for about 18 days. Learned counsel for the accused-petitioner contended that the incident took place in the year 1993 and about 18 years have passed since then, therefore, the accused may be released on the sentence already served. In support of his arguments, learned counsel for the petitioner relied upon the following judgments:- (i) (2008) 4 SCC 185 , Paul George v. State of NCT of Delhi (ii) 2006(1) Cr.L.R. (Raj.) 858, Nand Lal v. State of Rajasthan (iii) 2006(2) RDD 1248 (Raj), Shri Ram v. State of Rajasthan (iv) 2003(1) R.Cr.D. 140 (Raj), Chiman Lal v. State of Rajasthan 8. Learned Public Prosecutor left the matter to the discretion of the court on the point of sentence. 9. I have perused the judgments cited by the learned counsel for the petitioner. Learned Public Prosecutor left the matter to the discretion of the court on the point of sentence. 9. I have perused the judgments cited by the learned counsel for the petitioner. It is an admitted fact that the incident took place in the year 1993 and the accused-petitioner underwent imprisonment for about 18 days. The petitioner has undergone mental agony, harassment and financial burden in facing the investigation, trial of the case and in prosecuting the appeal and this revision. Keeping in view all the facts and circumstances of the case, the ends of justice would be secured if the sentence of the petitioner is reduced to already undergone by him and fine is enhanced from Rs. 5000/- to Rs. 10000/-, out of which Rs. 8000/- will be paid to the legal heirs of deceased Khamana Ram as compensation. 10. In the result, this revision petition is partly allowed. The conviction of the petitioner for the offence under Section 304-A IPC is maintained but the sentence of imprisonment passed against the petitioner is reduced to the sentence for the period of imprisonment already undergone by him. However, the fine imposed by the trial court is enhanced to Rs. 10000/-. In default of payment of fine, the petitioner shall further undergo simple imprisonment for two months. The petitioner is granted three months' time to deposit the fine. Out of the fine amount so recovered, Rs. 8000/- shall be paid to the legal heirs of the deceased. In case of failure of the petitioner to deposit the fine within the stipulated time, the trial court shall take appropriate steps as per law.Revision partly allowed. *******