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2012 DIGILAW 2279 (RAJ)

Sabir v. State of Rajasthan

2012-12-11

NISHA GUPTA

body2012
JUDGMENT 1. - This revision petition has been filed against the order dated 30.6.2010 passed by the learned Additional Sessions Judge, Rajgarh, District Churu whereby the petitioner has been charged for the offence under Section 302 Indian Penal Code or in the alternative for the offence under Section 302 read with Section 34 Indian Penal Code. 2. The short fact of the case are that on the statement of deceased Sohanlal, F.I.R. No. 131/2007 was registered under Sections 279 and 337, in which the deceased stated that an accident occurred on 4.7.2007 at 6.00 P.M. During the course of treatment, Sohanlal died and after investigation the police filed charge-sheet under Sections 279, 337 and 304-A I.P.C . and under the Motor Vehicles Act. The learned Judicial Magistrate, while disagreeing with the investigation report, and relying on the statements of Lichhma Devi wife of the deceased and Jetha Ram son of the deceased, took cognizance under Section 302 read with Section 34 Indian Penal Code and committed the case to the Court of Additional Sessions Judge, Rajgarh and the concerned Court has charged the present petitioners for the above offences. Hence, this revision petition. 3. Heard learned counsel for the parties and perused the record of the case. 4. The contention of the present petitioners are that initially, on the statements of Sohanlal, F.I.R. was registered for the offences under Sections 279 and 337 Indian Penal Code and after the death of Sohanlal, further offence under Section 304A I.PC. was added. Nobody has been named in the F.I.R. and a simple F.I.R. for the accident was lodged. There is no narration in the statement of Sohanlal that anybody has committed murder of the deceased and no specific allegation of any assault has been narrated in the statement. The postmortem report of the deceased also suggests that the police furnished information that it is an accidental death. The doctor was also of the opinion that the death might have been caused due to accident. An inquiry under Section 174 Criminal Procedure Code was initiated and all the witnesses were of the opinion that it is an accidental death. The postmortem report of the deceased also suggests that the police furnished information that it is an accidental death. The doctor was also of the opinion that the death might have been caused due to accident. An inquiry under Section 174 Criminal Procedure Code was initiated and all the witnesses were of the opinion that it is an accidental death. Notice under Section 133 of the Motor Vehicles Act also reveals that who was the driver of the vehicle at the relevant time and the police has also filed charge-sheet under Sections 279, 337 and 304A Indian Penal Code There is.no iota of evidence against the present petitioners to connect them with the murder of anybody. There is no evidence that the present petitioners have committed murder of the deceased or inflicted any injury, which was, in the ordinary course of nature, sufficient to cause death. The learned Court below has relied upon the statements of Lichma and son of deceased, who are admittedly not the eye-witnesses of the incident and furthermore reliance has been placed on the statement of deceased Sohanlal recorded under Section 161 Criminal Procedure Code and by treating the statement under Section 161 Criminal Procedure Code as dying declaration, charges have been framed against the present petitioners, which is against the settled preposition of law. Reliance has been placed on the judgment delivered in the case of Devi Shanker v. State of Rajasthan, 2011(1) RLW 805 , wherein it has been specifically held that the statement recorded under Section 161 Criminal Procedure Code cannot be considered as dying declaration of the deceased. 5. It is true that the statement of Sohanlal has been recorded under Section 161 Criminal Procedure Code wherein it has been stated that what is the cause of his death but apart from this fact, under Section 32 of the Evidence Act, certain procedure has been prescribed for recording the evidence and admittedly that procedure has not been followed and the statement has been recorded under Section 161 Criminal Procedure Code, which has only a limited implication and it cannot be treated as evidence under Section 32 of the Evidence Act. 6. 6. Looking at the above legal position, the statement of the deceased recorded under Section 161 Criminal Procedure Code cannot be termed as dying declaration and when statement of the deceased cannot be looked into as dying declaration, no other legal evidence is available on record to connect the present petitioner with the charged crime. None of the witnesses stated that the present petitioners have inflicted any injury to the deceased, which was sufficient in the ordinary course of nature to cause death. The postmortem report also suggests that the injury to the abdomen, which resulted into septicemia, is the cause of death. The accident occurred on 4.7.2007, whereas the deceased expired on 12.7.2007. 7. Taking note oi the above, the present petitioners have wrongly been charged for the offence under Section 302 Indian Penal Code or in the alternative for the offence under Section 302 read with Section 34 Indian Penal Code Hence, this revision petition is allowed and the petitioner is discharged of the above offences. But, at the same time, the matter is remanded back to the trial Court to consider the whether any other offence is made out against the present petitioner.The stay petition also stands disposed of accordingly.Revision disposed of. *******