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Madhya Pradesh High Court · body

2013 DIGILAW 36 (MP)

Kuldeep Shrivastava v. State of M. P.

2013-01-04

N.K.GUPTA

body2013
ORDER 1. This criminal revision has been preferred by the applicant against the order dated 6.6.2012 passed by the 1st Additional Sessions Judge to the Court of 1st Additional Sessions Judge, Panna in ST No. 74/2012, whereby the charge of offence punishable under section 304/34 of IPC was framed. 2. The prosecution case, in short relating to the present revision is that on 15.4.2012 the complainant Sandeep had lodged an intimation to the police at Police Station Dharampur District Panna that a black coloured car bearing registration No. MP19CA0780 was lying in a nala and one person was found dead below the car. The police sent the dead body of the deceased Mushtaque for the postmortem and after due investigation a charge sheet was filed before the Magistrate, who was competent to take cognizance and ultimately it was committed. The learned Additional Sessions Judge, Panna after considering the prosecution evidence as available in the charge sheet, framed the charge punishable under section 304/34 of IPC. 3. The learned counsel for the applicant has submitted that there is no eye-witness in the case, whereas the chain of circumstantial evidence is broken. It is apparent that the applicant was the owner of the car and the deceased was the driver of the car. It is stated by some witnesses like Sonu Khare etc. that the applicant along with one more person were talking on the road that a mistake has been done but the statement of such witnesses do not fall within the purview of extra judicial confession, because nothing has been confessed by the applicant. Similarly, one witness namely Kalla Urao has stated that when he saw the car the applicant was on the driving seat and the deceased was pushing the car from the front side. It is apparent that the deceased was found below the car. If he was pushing the car from the front side towards the backside, then it was not possible that he could be crushed by the car, because the car was moving towards the backward direction. Under such circumstances, the witness Kalla was not the person, who could say anything about the incident. There is a lot of gap between the position as told by the witness Kalla and the position of the car when the deceased was found dead. Under such circumstances, the witness Kalla was not the person, who could say anything about the incident. There is a lot of gap between the position as told by the witness Kalla and the position of the car when the deceased was found dead. There is no evidence against the applicant that due to his fault, the deceased died, and therefore it is nowhere established by the prosecution that the offence under section 304 of IPC is made out against the applicant. If he has disappeared the evidence, then the charge may be framed of that offence, but no charge under section 304 of IPC may be framed against the applicant either directly or with the help of section 34 of IPC. 4. On the other hand, the learned counsel for the State opposes the revision. He submits that it is apparent that the applicant was on the steering wheel initially and ultimately the driver, who was pushing the vehicle was found dead, and therefore the applicant is responsible for his death. 5. After considering the submissions made by the learned counsel for the parties and looking to the evidence as collected by the prosecution, it appears that there is a gap between the final incident and the incident as told by the witness Kalla. If the evidence given by the witness Kalla is accepted as it is, then certainly the deceased was pushing the car from the front side towards the backside, and therefore it was not possible that the deceased could be crushed by the car. Kalla left the spot, and therefore he could not say as to whether the deceased was dashed by the car or fell down in the nala, and the car went upon him. In the criminal cases, evidence is required to establish the prosecution case. Only by the suspicion, no offence can be presumed. 6. The deceased was the driver of the vehicle whereas the applicant was the owner of the vehicle and there was no enmity shown between the parties so that the applicant would have killed the deceased. Looking to the gap as shown above, there is no evidence as to how the incident took place, and therefore there is no basis by which it can be said that the guilt of the applicant falls within the purview of section 304 of IPC. It may fall under section 304A of IPC. Looking to the gap as shown above, there is no evidence as to how the incident took place, and therefore there is no basis by which it can be said that the guilt of the applicant falls within the purview of section 304 of IPC. It may fall under section 304A of IPC. Looking at the gap between the incident seen by the witness Kallu and the final scene, such possibility cannot be ruled out that the person who accompanied the applicant was on steering wheel at that time when the incident took place. There is no evidence to show as to how the vehicle jumped into nala. It cannot be said that it was a deliberate act or rashness or negligence of the applicant by which the vehicle fell in the nala. 7. Some witnesses were examined for the extra judicial confession of the applicant, but if their evidence is considered, then there is nothing about the guilt committed by the applicant, which was confessed by him. He simply told before the witnesses that mistake took place, but what was the nature of mistake and how it took place, it is nowhere mentioned by the witnesses, and therefore the chain of circumstantial evidence is also broken. No charge under section 304 of IPC can be framed against the applicant either directly or with the help of section 34 of IPC. The learned Additional Sessions Judge is required to examine the evidence in such a manner that if the evidence is considered as it is and no rebuttal is available, then whether the applicant can be convicted for the offence under section 304/34 of IPC? Answer to this question would be negative. Looking to the evidence adduced by the prosecution, if it is accepted as it is, then no charge can be framed under section 304/34 of IPC against the applicant, and therefore such charges could not be framed. 8. On the basis of the aforesaid discussion, the order passed by the learned Additional Sessions Judge appears to be of no basis, and therefore it cannot be maintained. Consequently, the instant revision petition succeeds and is hereby allowed. The impugned order dated 6.6.2012 passed in ST No. 74/2012 by the Additional Sessions Judge, Panna is hereby set aside. 8. On the basis of the aforesaid discussion, the order passed by the learned Additional Sessions Judge appears to be of no basis, and therefore it cannot be maintained. Consequently, the instant revision petition succeeds and is hereby allowed. The impugned order dated 6.6.2012 passed in ST No. 74/2012 by the Additional Sessions Judge, Panna is hereby set aside. It is directed that the learned Additional Sessions Judge shall hear the parties afresh to frame the charges and if it is found that the case is triable by the Court of JMFC, then it shall be remanded under section 228 of Cr.PC to the concerned Chief Judicial Magistrate. 9. A copy of this order be sent to the trial Court for information and compliance.