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2016 DIGILAW 1039 (RAJ)

Ghisa Ram v. State of Rajasthan

2016-07-21

GOVERDHAN BARDHAR

body2016
JUDGMENT Goverdhan Bardhar, J. The petitioner by, way of present revision petition under Section 397/40J. Cr.P.C. has assailed the impugned judgment dated 21.10.1999 passed by learned Additional Sessions Judge, Sojat, (for short, 'learned appellate Court'), in criminal, appeal no. 14/1999, whereby, the learned appellate Court has maintained the conviction and sentence awarded to the petitioner by the Judicial Magistrate (J.D.), Sojati city (for short 'learned trial Court') for offence under Section 279 & 304A IPC vide judgment dated 1.5.1999. For fence under Section 279 IPC, the petitioner has been sentenced to one month's simple imprisonment along with fine of Rs. 500/- and in default of fine to undergo one week's imprisonment and for offence under Section 304A IPC, the petitioner has been sentenced to undergone one year's simple imprisonment along with fine of Rs. 2000/- and in default of fine to further undergo one month's simple imprisonment. 2. Brief facts, giving rise to this revision petition, are that on 29.04.1989. PW/1 Jabbar Singh lodged a written report at Police station Shivpura stating therein that on receiving a message that a tractor No. RJQ 2067 has overturned near the pond and a person sitting on tractor has received serious injuries, when he reached the spot, he saw that. Bhanwar Singh Khichi was in injured and unconscious state. It was alleged that the accident occurred due to rash and negligent driving of the driver Ghisa Ram. It is further alleged that injured Bhanwar Singh was taken to hospital at Jodhpur, however, he succumbed to his injuries on his way. 3. The police registered the FIR for offence under Section 279, 338 and 304A IPC and investigation commenced. After investigation, the police filed challan against the petitioner for offences under Section 279 & 304A I.P.C. 4. After hearing the arguments and considering the material on record, the learned trial court framed charges against the petitioner for offence under Sections 279 & 304A, who pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined 13 witnesses in support of their case. The accused in their statements under section 313 Cr.P.C. denied the allegations leveled against him however, no evidence was produced in his defence. 6. At the conclusion of the trial, the learned trial Court vide judgment dated 01.05.1999 convicted the accused-petitioner for offence under Sections 279 & 304A IPC and sentenced as above. 7. The accused in their statements under section 313 Cr.P.C. denied the allegations leveled against him however, no evidence was produced in his defence. 6. At the conclusion of the trial, the learned trial Court vide judgment dated 01.05.1999 convicted the accused-petitioner for offence under Sections 279 & 304A IPC and sentenced as above. 7. Being aggrieved by his conviction and sentence the petitioner preferred appeal before the learned Addl. Sessions Judge, Sojat, who by his judgment dated 21.10.1999 dismissed the appeal and upheld the conviction and sentence of the petitioner recorded by the learned trial Court. Hence, this revision petition. 8. Learned counsel for the petitioner submitted that both the courts below have failed to consider that there is no an iota of evidence of rash and negligent driving by the petitioner. All the prosecution eye witnesses PW/4 Basti Ram, PW/8 Bhunda Ram, PW/9 Sangrama Ram, PW/10 Hukma Ram, PW/11 Parasmal and PW/12 Likhmaram have not the prosecution story and were declared hostile. It is further argued that PW/1 Jabbar Singh who is the informant of the incident is not an eye witness. He has only stated that when he heard the voice, he reached on the spot. Since no witness has seen the incident nor any persons has seen the petitioner driving the vehicle at the time of alleged incident, therefore, both the courts below have misread the evidence and have not appreciated the evidence in correct perspective. If is further argued that the prosecution has failed to produce the investigating officer and the doctor who conducted the postmortem of deceased. Thus, the prosecution has miserably failed to prove the case beyond reasonable doubt and therefore, the conviction and sentence passed by the courts below are liable to be quashed and set aside. He has placed reliance of Judgment of Hon'ble Supreme Court in the case of Sharad Birdhichand Sanda v. State of Maharashtra, Cr. L.R. (SC) 1984 page 296, Sant Lal v. State of Rajasthan, 1975 Supreme (Raj.) 113, State of Rajasthan v. Hari Singh, 1968 RLW (Raj.) 485 and Sangram Singh v. State, 1990 Cr. LR (Raj) 494. 9. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. L.R. (SC) 1984 page 296, Sant Lal v. State of Rajasthan, 1975 Supreme (Raj.) 113, State of Rajasthan v. Hari Singh, 1968 RLW (Raj.) 485 and Sangram Singh v. State, 1990 Cr. LR (Raj) 494. 9. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted that there is no occasion either to interfere with the concurrent findings and the sentence awarded to the accused petitioner by the learned Court below nor any sympathy is called for in the said case. 10. I have perused the evidence of the prosecution as well as defence and the judgments passed by both the courts regarding conviction of the accused petitioner. 11. PW/1 Jabbar Singh has categorically stated that when he heard the voice that tractor has fell down, then he reached on the spot. PW/4 Basti Ram has stated that he has not seen the petitioner plying the tractor at the time of accident. Similarly, prosecution witnesses PW/8 Bhunda Ram, PW/9 Sangrama Ram, PW/10 Hukmaram, PW/11 Parasmal and PW/12 Likhmaram have also not supported the prosecution story and have been declared hostile. The prosecution witnesses failed to show the cause of the accident and how the accident occurred. It is settled proposition of law that in order to hold a person guilty under Section 304-A IPC, rash and negligent act should be the direct or proximate cause of the death. There mere fact that a fatal accident took place would not by itself be enough to make the accused liable under Section 304-A IPC and in order bring home an offence under this Section, it must be proved beyond reasonable doubt by the prosecution that the mishap was result of rash and negligence on the part of the driver. 12. In the case of Hari Singh (supra), this of Court while dealing with this aspect of the matter, has made following observation:- "6. In order that a person may be guilty under Section 304A, I.P.C., rash and negligent act should be the direct or a proximate cause of the death. 12. In the case of Hari Singh (supra), this of Court while dealing with this aspect of the matter, has made following observation:- "6. In order that a person may be guilty under Section 304A, I.P.C., rash and negligent act should be the direct or a proximate cause of the death. I may in this connection refer to Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 in which Sir Lawrence Jenkins made the following observation: "To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non." This view has been approved by their Lordships of the Supreme Court in Kurban Hussein Mohamedalli Rangwalla v. State of Maharashtra, AIR 1965 SC 1616 . The mere fact that a fatal accident took place would not by itself be enough to make the accused liable under Section 304A, IPC to bring home an offence under this section, it must be proved beyond reasonable doubt by the prosecution that the death of the victim was the direct result of rashness or negligence on the part of the accused. Such evidence is lacking in this case. The death in this case does not appear to be the direct result of rash or negligent act on the part of the respondent without the intervention of another's negligence." 13. Herein this case, there is no direct evidence on record to show the manner in which the accident took place so also regarding speed, rashness or negligence. In this case, the prosecution has relied upon the so-called eye-witness but, when their evidence is analyzed, it is evident that they have not stated how the accident occurred and that the petitioner driver was driving the tractor in a rash and negligent manner. 14. In view of above, since the prosecution has not led any evidence regarding the manner in which the incident occurred and the alleged eye-witnesses have also not supported the prosecution story, therefore, petitioner is entitled to be granted the benefit of doubt. 15. 14. In view of above, since the prosecution has not led any evidence regarding the manner in which the incident occurred and the alleged eye-witnesses have also not supported the prosecution story, therefore, petitioner is entitled to be granted the benefit of doubt. 15. Accordingly, the revision petition is allowed the petitioner is acquitted of the charges under Sections 304-A and 279 IPC. The accused already on bail. His bail bonds are hereby discharged.