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2015 DIGILAW 109 (MP)

Dwarika Prashad Goswami v. State of M. P.

2015-01-29

S.K.PALO

body2015
JUDGMENT : S.K. Palo, J. 1. By this revision the petitioner/accused has challenged the judgment dated 23.05.2008 passed by IInd Additional Sessions Judge, Shivpuri, in Criminal Appeal No. 108/08. This Appeal was filed by the petitioner challenging the judgment pronounced in Criminal Case No. 395/2005 passed by JMFC, Shivpuri on 26.03.2008 by which the petitioner was held guilty under Section 337 of IPC and sentenced to R.I for six months and fine of Rs.100/- failing which he has to undergo sentence for three days. The petitioner/accused was also sentenced under Section 304A of IPC R.I. for 1 year and imposed a fine of Rs.500/-. In lieu of fine he has to undergo additional imprisonment for 7 days. However, no separate sentence was pronounced under Section 279 of IPC. In the Criminal Appeal, learned Second ASJ, maintained the judgment and conviction and also confirmed the sentence passed by the learned JMFC under Section 304-A IPC. However, for offence under Section 337 IPC, appeal was partly allowed and the sentence was reduced to one month only. 2. The petitioner has challenged the verdict of conviction and requested to set-aside the same and prayed for quashing the award of sentence and to acquit the petitioner. The petitioner contended that the learned Trial Court and the First Appellate Court erred in awarding the sentence. No independent witness has been examined to prove the prosecution story. The witnesses examined are planted witnesses. Learned Trial Court failed to consider the grounds pleaded by the petitioner and erred in convicting the petitioner. 3. I have perused the entire record and the judgments of the Courts below. 4. Deceased Dakhkhobai, W/o Naktu, aged 60 years died due to shock caused by multiple injury and hemorrhage. Dr. M.L. Agrawal, PW-10 examined the injured Dakhkhobai on 7.10.2013 and found a lacerated wound on the fronto-parietal region and a lacerated wound on the parietal-occipital region. Injured Dakhkhobai was brought to hospital at about 8 P.M. and it was stated to the doctor on duty that near Garima Petrol Pump, a tempo dashed her. Therefore, injured was admitted in the hospital. Pooja D/o Gappu Adiwasi, aged two years was also injured in the accident. Pooja received an abrasion and a contusion on her head at the parietal region. Dr. V.C. Goyal PW-12 performed the postmortem on 08.10.2013 and opined that the injury received by Dakhkhobai appears to be accidental in nature. Therefore, injured was admitted in the hospital. Pooja D/o Gappu Adiwasi, aged two years was also injured in the accident. Pooja received an abrasion and a contusion on her head at the parietal region. Dr. V.C. Goyal PW-12 performed the postmortem on 08.10.2013 and opined that the injury received by Dakhkhobai appears to be accidental in nature. In these circumstances, it is clear that Dakhkhobai died due to the injuries received by her in the accident. 5. The second aspect for consideration would be whether the accident was caused by the rash and negligent driving of the petitioner? 6. In this respect, the information received by Doctor was sent to Police which is Exhibit P-3. Dr. M.L. Agrawal (PW-10) indicated that a tempo dashed Dakhkhobai near Garima Petrol Pump. Jagdish (PW-1) has stated that when he reached the spot, he saw children crying and an injured old lady was lying on the road. On his asking it was stated that a tempo dashed the old lady. Another eye witness Prakash (PW-3) has stated that almost three years ago at about 6 PM near Garima Petrol Pump, Shivpuri, he was sitting in a shop. He saw Dakhkhobai crossing the road alongwith a girl. A tempo came from Shivpuri side in high speed and dashed Dakhkhobai. Dakhkhobai fell on the ground and became unconscious. The tempo fled from the spot. Later, the tempo was caught at Sarsai. The tempo was not having its head light. The number of tempo according to this witness is MP-08T 0106. 7. Baljeet Singh(PW-4) was another eye witness examined by the prosecution. He saw an old woman was dashed by a tempo while travelling in high speed and a child was also with the old woman. He followed the tempo by his motorcycle. However, he could not catch the tempo but he saw the registration number of tempo and narrated the number to Police. However, at the time of his deposition he could not able to mention the number of the tempo. Subsequently when he was put questions after declaring him hostile, he mentioned the number as 'MP-08T 0106'. The Courts below also held that the accident occurred in the year 2003 and the statement of witness was recorded on 10th August, 2007. Therefore, 3 years after the accident not remembering the registration number of tempo is not unnatural. 8. Subsequently when he was put questions after declaring him hostile, he mentioned the number as 'MP-08T 0106'. The Courts below also held that the accident occurred in the year 2003 and the statement of witness was recorded on 10th August, 2007. Therefore, 3 years after the accident not remembering the registration number of tempo is not unnatural. 8. Ramdayal (PW-5) also examined as an eye witness. He has also narrated that he saw the accident. However, he could not remember the registration number of the tempo but he has clearly stated that he remembered the number at the relevant time and narrated the number to the Police. When declared hostile and put suggestions, he said that he mentioned the number MP-08T 0106 to the Police. As the accident occurred in the year 2003, and the deposition of this witness was being recorded on 10th August, 2007, it is quite unnatural, the registration of the tempo might have faded from his mind. 9. It would be very important to mention here that Yogesh Karare, the owner of the questioned tempo having registration No. MP-08T 0106 has been examined as PW-13 and stated that the said tempo was being driven by accused Dwarika (driver). On 7.10.2013, he has issued a certificate to this effect. The certificate is marked as Exhibit P-13, in which it is stated that accused Dwarika was the driver of that tempo at the relevant time. Later, he received the tempo by supurdginama Exhibit P-14. 10. All these show that the tempo was being driven by the petitioner Dwarika at the relevant time. The Trial Court as well as First Appellate Court have analyzed the evidence and come to the conclusion that it was the petitioner who was driving the questioned tempo rashly and negligently. Because of which the accident has occurred. The concurrent findings of the Courts below are based on cogent reasons and not called for any interference. 11. Having said so, I do not find any irregularity, illegality or perversity in the impugned judgments. Hence, the petition is liable to be dismissed and it is dismissed.