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2016 DIGILAW 867 (RAJ)

Narain Singh v. State of Rajasthan

2016-06-14

GOVERDHAN BARDHAR

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JUDGMENT : Goverdhan Bardhar, J. 1. Heard the learned counsel for the parties. 2. Instant revision petition has been filed by the petitioner against the judgment dated 23.09.1999 passed by learned Additional Sessions Judge, Pali (for short 'the appellate court') whereby, while upholding the conviction and sentence of the petitioner recorded by the Chief Judicial Magistrate, Pali under Section 279, 304A & 337 IPC vide judgment and order 06.06.1997 passed in Criminal Case No. 435/1991, the sentence and fine for offence under Section 304A IPC was reduced to the period of one year rigorous imprisonment along with fine of Rs. 5,000/- and in default of payment of fine to further undergo three months imprisonment. The learned trial Court had convicted the accused-petitioner Narain Singh for offence under Sections 279, 304A & 337 I.P.C. and sentenced as under:- Offence Sentence awarded by the trial court U/s 279 IPC To undergo 6 months' simple imprisonment along with fine of Rs. 1,000/- in default of fine to further undergo one month's simple imprisonment. U/s 304A IPC To undergo two year's rigorous imprisonment along with fine of Rs. 20,000/- in default of fine to further undergo six months simple imprisonment U/s 337 IPC To undergo six months simple imprisonment along with fine of Rs. 500/- and in default of payment of fine to further undergo one month's simple imprisonment. 3. The sentence awarded to the petitioner by the learned trial court under Section 304A IPC was reduced by the appellate court as under :- Offence Sentence awarded by the appellate court U/s 304A IPC To undergo one year's rigorous imprisonment along with fine of Rs. 5,000/- in default of fine to further undergo three months simple imprisonment. 4. As per brief facts of the case, on 31.05.89, the complainant PW/5 Vipin Parihar lodged a written report at Police station Kotwali, Pali stating therein that on 31.05.1999 at 12:30 PM, when he along with his friend Sudhir Chauhan were going towards Nahar Pulia, Sojat Road to their house Veer Durgadas Nagar on bicycle and when they took turn near Marudhar Hotel to Suraj Pole road, one Matador being driven at high speed hit the bicycle due to which the complainant fell down and wheel of Matador ran over Sudhir due to which he receive serious injuries and later on succumbed to the injuries. It was further stated that in the said incident, the complainant also receive injuries on his person. 5. The police registered the FIR for offences under Section 279, 337 and 304A IPC and investigation commenced. After investigation, the police filed challan against the accused-respondent for offences under Section 279, 337 & 304A IPC. 6. After hearing the arguments and considering the material on record, the learned trial court framed charges against the petitioner for offences under Sections 279, 337 & 304A, who pleaded not guilty and claimed trial. 7. At the trial, the prosecution examined 10 witnesses in support of case. The accused in statement under section 313 Cr.P.C. denied the allegations levelled against him however, no evidence was produced in his defence. 8. At the conclusion of the trial, the learned trial Court vide judgment dated 06.06.1997 convicted the accused petitioner Narain Singh for offences under Sections 279, 304A & 337 IPC and sentenced as above. 9. Being aggrieved by his conviction and sentence, the petitioner preferred appeal before the learned Addl. Sessions Judge, Pali, who by his judgment dated 23.09.1999 upheld the conviction of the petitioner recorded by the learned trial Court but reduced the period of sentence and amount of fine for offence under Section 304A, as aforesaid. Hence, this revision petition. 10. Learned counsel for the petitioners submitted that there is not an iota of evidence regarding rash and negligent driving by the petitioner. According to learned counsel for the petitioner the vehicle Matador was going on left side of the road and the accident took place on right side of the vehicle. It is submitted that cyclist Vipin Kumar came on wrong side because he had to turn towards Suraj Pole and vehicle was going on Sojat Road so the cyclist came on wrong side and hit the Matador. It is submitted by the learned counsel for the petitioner that a perusal of the site plan Ex.P/6 will go to show that the driver of Matador was not on wrong side and in fact the cyclist came on wrong side, therefore, there is no negligence or rashness on the part of the driver of the Matador. It is submitted by the learned counsel for the petitioner that a perusal of the site plan Ex.P/6 will go to show that the driver of Matador was not on wrong side and in fact the cyclist came on wrong side, therefore, there is no negligence or rashness on the part of the driver of the Matador. It is further submitted on behalf of counsel for the petitioner that independent witness PW/2 Heera Das has categorically stated that the speed of the Matador was slow and as soon as the accident happened, the vehicle stopped at once. Thus, it is pleaded on behalf of the petitioner that there is no evidence with regard to rash and negligent driving on the part of the driver of Matador and therefore the petitioner cannot be held guilty for the alleged incident Therefore, it is prayed that the petitioner may be acquitted of the aforesaid offences. Learned counsel for the petitioner argued that the prosecution has failed to produce any positive evidence that the driver was negligent and in this case, there is no question of rashness as the Matador was on the left side and as per statement of independent witness, the matador was not in high speed. He has placed reliance of judgment reported in 2000 Cr.L.J 3394 Pradeep Kumar v. State of Haryana', 1989 Cr.LR. (Raj.) 375 Lohdya v. State of Rajasthan', 2000(2) R.Cr.D 815 State of Rajasthan v. Shambhu Singh', 2000 Cri.L.J 3617 Ladu Kishore Choudhary v. State of Orissa'. 11. 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 petitioners by the learned Court below nor any compassion or sympathy is called for in the said case. 12. I have perused the evidence of the prosecution as well as defence and the judgments passed by both the trial courts regarding conviction of the accused-petitioner. 13. In the matter in hand, in the site plan Ex.P/6 it is shown that accident occurred at place A and on the left hand side of the road, tyre of the matador was found on kachha road and the cycle came from right side. 14. 13. In the matter in hand, in the site plan Ex.P/6 it is shown that accident occurred at place A and on the left hand side of the road, tyre of the matador was found on kachha road and the cycle came from right side. 14. PW/4 Vipin Kumar in his statement has stated that he and Sudhir were coming on bicycle and Sudhir was sitting on front rod of cycle and the moment he took a turn, the matador coming at high speed collided with the cycle and front wheel of matador ran over Sudhir. 15. In the cross-examination, he admits that width of the road leading towards Surajpole is 30-40 ft. and movement of vehicles is very frequent in every 2-3 minutes. 16. Further, it has been categorically stated by independent witness PW/2 Heera Das that the moment the accident occurred, the Matad or stopped immediately and the Matador was not in high speed. The said witness of accident was declared hostile and did not support the prosecution story. 17. Thus, it is revealed that the incident occurred due to sudden turn taken by the cyclist and at the time of accident, the surrounding was not crowded. It was the duty of the cyclist that after passing the vehicle in question, he could have taken a turn to go towards left side from the right side. From the ocular as well as documentary evidence produced in this case, it seems that the accident took place due to sudden turn taken by the cyclist in hot haste manner. Thus, the prosecution has failed to establish negligence on the part of appellant beyond reasonable doubt. Under such circumstances, mere driving at high speed does not amount to negligent driving nor it constitutes the offence under Section 304A IPC. There is no proof that the death of the person has been caused by doing any act in rash and negligent manner and as such, there must be positive proof that the rash and negligent act of accused was the proximate cause which resulted in death of the deceased. Before a person is convicted for offence under Section 304A, it must be proved that the act was done with conscious risk and consequence of death was likely to follow. Before a person is convicted for offence under Section 304A, it must be proved that the act was done with conscious risk and consequence of death was likely to follow. In the present case, there is absolutely no material to show that the petitioner was driving at a high speed with total disregard to life and safety of others to make him criminally liable for rashness and negligence. 18. In view of above discussion, the present revision petition is allowed. The conviction and sentence passed by the court of Additional Sessions Judge, Pali vide judgment dated 23.09.1999 is quashed and set aside and petitioner is acquitted of the charge under Section 279, 304 & 337 IPC. The petitioner is on bail. His bail bonds are hereby discharged.