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2012 DIGILAW 348 (RAJ)

State of Rajasthan v. Kailash Chandra

2012-02-08

R.S.CHAUHAN

body2012
JUDGMENT 1. - The State is aggrieved by the judgment dated 22.1.2011 passed by Additional Chief Judicial Magistrate, Shahpura, District Bhilwara, whereby the learned Judge has acquitted the accused respondent, Kailash Chandra, for offences under Sections 279, 337, 338 and 304-A I.P.C. 2. Briefly, the facts of the case are that on 27.5.2004, around 12.05 A.M., one Suresh Chand (PW-1), submitted a written report (Ex.P-1), wherein he claimed that on 26.5.2004, a religious festivity was being celebrated at Sri Mataji. The festivity was supposed to go on for the entire night. In order to participate in the said festivity, people from nearby villages had congregated. Around 11.15 P.M., a Mini-Truck, bearing registration No: RJ-06/G-3713, came from the side of Gulabpura. The said Mini Truck was being driven in rash and negligent manner. On the truck, it was written that it belongs to Parswanath Tent House, Aasind. Due to the rash and negligent driving, about thirty to thirty-five persons were injured, and three to four persons died on the spot. On the basis of the said report, a formal F.I.R., F.I.R. No. 81/2004 was chalked out. Subsequently, the accused respondent, Kailash Chandra, was arrested. A charge-sheet for offences under Sections 279, 337, 338 and 304A I.P.C. was submitted against him. 3. In order to support its case, the prosecution examined fifty-five witnesses, and submitted sixty-five documents. However, in defence, the accused respondent neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, vide judgment dated 22.1.2011, the learned Judge acquitted the accused respondent. Hence, this criminal leave to appeal before this Court. 4. Mr. O.P. Singharia, the learned Public Prosecutor, has vehemently contended that in the notice given to the owner of the Mini-Truck, Navratanmal (PW-53), under Section 133 of the Motor Vehicles Act, he had claimed that the driver of. the Mini-Truck was Kailash .Chandra. Hence, it should be presumed that at the relevant time, the Mini-Truck was driven by none other than Kailash Chandra. Therefore, the learned Judge has erred in acquitting the respondent of the aforementioned offences. 5. On the other hand, Mr. R.S. Chundawat, the learned counsel for the accused respondent, has vehemently contended that in his cross-examination, Navratanmal (PW-53), has clearly admitted that he was not present at the scene of the occurrence, when the alleged accident had taken place. Therefore, the learned Judge has erred in acquitting the respondent of the aforementioned offences. 5. On the other hand, Mr. R.S. Chundawat, the learned counsel for the accused respondent, has vehemently contended that in his cross-examination, Navratanmal (PW-53), has clearly admitted that he was not present at the scene of the occurrence, when the alleged accident had taken place. Therefore, he is not able to say whether the Mini-Truck was driven by Kailash Chandra, or by someone else. Secondly, although a large number of witnesses have been examined, none of them have identified the driver of the offending vehicle. Therefore, even if, there is a strong suspicion, it cannot take the place of proof. Hence, there is no evidence to prove the fact that the Mini-Truck was, indeed, being driven by the accused respondent. Thus, the learned Judge was certainly justified in acquitting the accused respondent of the above mentioned offences. Hence, the counsel has supported the impugned judgment. 6. Heard the learned counsel for the parties, and perused the impugned judgment. 7. Needless to say, it is the duty of the prosecution to establish the case beyond a reasonable doubt. The distance between "may be true" and "must be true" is a long distance, which the prosecution has to cover. Moreover, suspicion no matter howso strong, cannot take the place of proof. 8. A bare perusal of the testimony of Navratanmal (PW-53), clearly reveals that in his examination-in-chief, he has admitted the fact that Kailash Chandra was driver of the vehicle. But in his cross-examination, he clearly states that he was not present at the time of accident. Hence, he is not in a position to tell the Court, as to who was driving the vehicle at the relevant time. 9. Suresh Chandra (PW-1), Smt. Dhapu (PW-17), Satyanarayan (PW-18), Narayanlal (PW-19), Himmat Singh (PW-20), Manohar Singh (PW-21), Satyanarayan (PW-23), Durga Lal (PW-30), Hemraj (PW-31), Sunderlal (PW-40), Smt. Geeta (PW-45), Ramgopal (PW-47) have not said a word about the identity of the driver of the offending Mini-Truck. All of the witnesses have merely said that the accident occurred with Mini-Truck No. RJ-06/G-3713. However, none of the witnesses have been able to identify as to who the driver was at the relevant time. Moreover, since the driver was a total stranger to the eye-witnesses, even after his arrest, he was not subjected to a test identification parade. All of the witnesses have merely said that the accident occurred with Mini-Truck No. RJ-06/G-3713. However, none of the witnesses have been able to identify as to who the driver was at the relevant time. Moreover, since the driver was a total stranger to the eye-witnesses, even after his arrest, he was not subjected to a test identification parade. Therefore, the prosecution has failed to prove the identity of the driver of the Mini-Truck. Merely because the owner has claimed that he was the driver, a presumption cannot be drawn that at the relevant time the vehicle was driven by the accused respondent. Hence, the trial Court was left with a serious doubt, as to who was driving the Mini-Truck when the accident had occurred. Therefore, the learned Judge had not other option, but to give the benefit of doubt to the accused respondent.Thus, this Court does not find any illegality or perversity in the judgment dated 22.1.2011. Hence, the criminal leave to appeal is devoid of any merit, it is, hereby, dismissed.Leave to appeal dismissed. *******