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2011 DIGILAW 977 (MP)

Arvind Singh Rajput v. State of M. P.

2011-08-23

U.C.MAHESHWARI

body2011
JUDGMENT : U.C. Maheshwari , J. (Oral)- 1. The applicant-accused has directed this revision under Section 397/401 of Cr.PC being aggrieved by the judgment dated 22-6-2011 passed by Special Judge, constituted under SC/ST (Prevention of Atrocities) Act, Sagar in Criminal Appeal No. 224/10 dismissing his appeal by affirming the judgment dated 16-7-2010 passed by JMFC, Sagar, in Cr. Case No. 5584/2009 convicting and sentencing the application under Section 304-A of IPC for RI one year with fine of Rs. 500/-, in default of depositing the fine further RI two months. 2. The case of the prosecution in short is that on 2-8-2001 at about 8.45 in the morning the applicant Kallu @ Arvind was driving the tractor bearing No. MP 15-A/0233 along with trolley in rash and negligent manner, consequently one Bharat Ahirwar, who was standing in the trolley, was fell down and his head was run over by the trolley, resultantly he died on the spot. On lodging the report by one Ramlal Ahirwar an offence under Section 304-A of IPC was registered against the applicant, post-mortem of dead body was carried out, in which it was revealed that he died because of the injury sustained in the alleged accident. On completion of investigation, the applicant was charge-sheeted for the offence under Sections 279 and 304-A of IPC. On framing the charge of Section 304-A of IPC the applicant abjured the same, on which the evidence was recorded and on appreciation of the same holding that the alleged accident was the cause and consequences of rash and negligent driving of aforesaid tractor by the applicant he was convicted and sentenced as stated above. On filing the appeal by affirming the judgment of the Trial Court, the same was dismissed by the Appellate Court, on which the applicant has come forward with this revision. 3. Shri Alok Vagrecha, learned Counsel for the applicant after taking me through the evidence led by the prosecution along with exhibited papers said that the prosecution has utterly failed to prove the direct nexus between any negligental act of the applicant and the alleged accident in which said Bharat Ahirwar had died. 3. Shri Alok Vagrecha, learned Counsel for the applicant after taking me through the evidence led by the prosecution along with exhibited papers said that the prosecution has utterly failed to prove the direct nexus between any negligental act of the applicant and the alleged accident in which said Bharat Ahirwar had died. In continuation he said that in any case in the lack of any specific/expert evidence showing the exact speed of the tractor at trig time of accident merely on the basis of general testimony that tractor was driven' by the applicant in rash and negligent manner, the applicant could not be convicted for the alleged offence. According to him one person may say the speed of 10-15 miles per hour is high speed while other person may say the speed of 20-30 miles per hours a reasonable speed, in the lack of exact speed mere on the presumption and assumption or probable speed the person like applicant could not be convicted for the alleged offence. In support of this contention he placed his reliance on a decision of the Apex Court in the matter of Mohantalal Saha Vs. State of West Bengal, reported in 1968 ACJ 124. He also placed his reliance in the matter of Suleman Rahiman Mulani Vs. State of Maharashtra, reported in AIR 1968 SC 829 , and prayed to acquit the applicant by for setting aside the impugned judgment by allowing this revision. 4. On the other hand responding the aforesaid arguments Smt. Nirmala Nayak, learned G.A. by justifying the impugned judgment and conviction of the applicant said that the same is based on proper appreciation of evidence and also in accordance with the settled legal position, the same does not require any interference at this stage either for extending the acquittal or even for reducing the jail sentence. 5. Having heard the parties keeping in view their arguments on perusing the record, I am of the considered view that the conviction of the applicant under the aforesaid offence is not sustainable under the law. 6. 5. Having heard the parties keeping in view their arguments on perusing the record, I am of the considered view that the conviction of the applicant under the aforesaid offence is not sustainable under the law. 6. In order to prove the case the prosecution has examined as many as fifteen witnesses out of them Ramnath (P.W. 1), Premlagan (P.W. 2), Halli (P.W. 3), Kallu (P.W. 6), Dasoda (P.W. 7), Betibai (P.W. 8) and Kashiram (P.W. 12) are examined as eye-witnesses of the incident as they were also travelling in the same trolley in which the deceased Bharat Ahirwar was travelling. It appears from the deposition of all the aforesaid witnesses, they being labour, any of them did not have any experience of driving of the vehicle and have also not stated regarding exact speed of the offending vehicle plied on the road. The above mentioned all witnesses had recorded in their deposition only that the tractor was driven by applicant in rash and negligent manner, resultantly on the way said Bharat Ahirwar was felled down and his head was run over by the wheel of the trolley. No one has stated the exact speed of the tractor. Therefore, this Court has to consider and answer the question whether mere on the deposition of said witnesses that the tractor was driven by the applicant in rash and negligent manner, in the lack of any experience of the witnesses about the operation of the vehicle and to assess the exact speed relying on their testimony could the applicant be held guilty for driving the offending tractor negligently or in rash and negligent manner and whether there was direct nexus between the act of the applicant and the accident. 7. Before proceeding further I would like to mention here that in order to prove the speed of the alleged vehicle no technical and scientific investigation like the tyre marks or its photograph were collected by the investigating agency otherwise in the light of such technical and scientific evidence considering the testimonies of aforesaid witnesses the exact or approximate speed and the factum of negligence on the part of the applicant could have been ascertained. In the lack of such evidence mere on the vague depositions of the above mentioned witnesses the speed of the vehicle could not be deemed to be rash and negligent. In the lack of such evidence mere on the vague depositions of the above mentioned witnesses the speed of the vehicle could not be deemed to be rash and negligent. In fact in the lack of any specific evidence regarding speed in the deposition of said witnesses the same have lost their values and in such premises no inference could be drawn against the applicant to hold the alleged vehicle was driven by him in rash and negligent manner. My aforesaid view is also fortified by the principle laid down by the Apex Court in the matter of Nageshwar Shrikrishna Choubey Vs. State of Maharashtra, reported in 1973 MPLJ 240. 8. Now coming to consider the another question of the case whether mere on the aforesaid depositions of the said witnesses the speed of offending tractor could be held to be high speed when none of said examined witness has stated the exact or approximate speed of tractor. 9. Long before the Constitutional Bench of the Apex Court on arising the occasion answered this question in the matter of Mohantalal Saha (supra), in the following words:- “No attempt was made to find what this witness understood by high speed. To one man a speed of even 10 or 20 miles per hour may appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently.” 10. On examining the case at hand in view of the aforesaid principle of Apex Court, the same is applicable. As in this case also, the prosecution has not made any attempt to prove the exact speed from any of the witnesses. In such premises mere on the basis of the version of the witnesses, stating the high speed or the allegation of negligent driving of the offending vehicle, the person like applicant could not be convicted. 11. It is apparent from the case of the prosecution that the deceased was travelling in the trolley attached at back side of the tractor and tractor was driven by the applicant at different dimension. 11. It is apparent from the case of the prosecution that the deceased was travelling in the trolley attached at back side of the tractor and tractor was driven by the applicant at different dimension. It is also apparent from the record that besides the deceased some other persons including the aforesaid eye-witness were also travelling in the same trolley and out of them except the deceased no one was felled down or sustained any injuries in the alleged accident. Therefore, the possibility that the deceased might have fell down because of his own fault from the tractor could not be ruled out. Unfortunately after falling down from the trolley the deceased was run over by the wheel of the trolley and not the tractor. Under such circumstances also the applicant could not be held negligent in his driving. In such premises, the approach of the Courts below could not be held to be sustainable at this stage. 12. In view of the aforesaid discussion, it is apparent that the prosecution has failed to establish any negligence in the driving of the offending tractor by the applicant. In such premises direct nexus between the act of the applicant and the alleged accident has also not been established. Therefore, in view of the principle laid down by the Apex Court in the matter of Suleman Rahiman Mulani (supra), also the impugned conviction and sentence of the applicant could not be Sustained. 13. In view of the aforesaid discussion the impugned judgment as well as conviction and sentence of the applicant being perverse and contrary to law, is not sustainable under the law, resultantly, by allowing this revision the impugned judgment of the Courts below are set aside and the applicant is acquitted from the alleged charge of Section 304-A of IPC. The amount of fine imposed by the Courts below, if deposited by the applicant then after due verification same be refunded to him. 14. The applicant is facing the jail sentence since 22-6-2011 in compliance of the impugned judgment of the Appellate Court, hence in view of aforesaid acquittal he is directed to set at liberty immediately, if his presence is not required in any other case. Revision is allowed, as indicated above.