Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1440 (RAJ)

Ganpat Singh v. State of Rajasthan

2017-06-29

SANJEEV PRAKASH SHARMA

body2017
ORDER : Sanjeev Prakash Sharma, J. The present revision petition under Section 397 Cr.P.C. read with Section 401 Cr.P.C. is directed against the judgment dated 26.04.2004 passed by the learned Additional Sessions Judge, Jhunjhunu (hereinafter to be referred as 'appellate Court') whereby the judgment dated 24.02.2003 passed by the learned Civil Judge (Jr. Division) & Judicial Magistrate, Ist, Udaipurwati Distt. Jhunjhunu (hereinafter to be referred as 'trial Court) has been upheld. The accused-petitioner has been convicted for the offences under Section 279 and 304A IPC and sentenced to three months Rigorous Imprisonment and fine of Rs. 200/- for offence under Section 279 IPC and sentenced to nine months rigorous imprisonment and fine of Rs. 500/- for offence under Section 304A IPC. In default of payment of fine, the accused-petitioner was to further undergo for 7-7 days rigorous imprisonment. 2. Learned Counsel for the petitioner submits that factum of having driven vehicle in rash and negligent manner was required to be proved beyond doubt by the prosecution. The petitioner had come out with a specific case that he was driving the vehicle carefully and on account of the cattle (buffalo) having come on the road, the petitioner had to drive the vehicle off the road resulting in overturning of the vehicle and unfortunately the old person deceased namely Moolaram came under the overturned vehicle causing his death. The accused-petitioner's version has been supported by the eye-witness P.W.10 Birjusingh who also has stated that the vehicle was being driven cautiously and even the driver had used all possible careful methods to drive the vehicle without any negligence. The accident occurred on account of buffalo having come before the vehicle and having overturned and the deceased coming under the vehicle. The said version of P.W.10 Birjusingh has not been controverted. 3. As regards the statement of P.W.1 Shishupal is concerned, learned Counsel has taken this Court to the statement which is contradictory at several places. In cross-examination P.W.1 namely Shisupal has changed his version twice. 4. Learned Counsel for the State however, opposes the submissions and submits that there has been a death caused and the offence under Section 304A is made out. 5. The Hon'ble Supreme Court in (1998) 8 SCC 493 ; State of Karnataka v. Satish has observed as under : "4. In cross-examination P.W.1 namely Shisupal has changed his version twice. 4. Learned Counsel for the State however, opposes the submissions and submits that there has been a death caused and the offence under Section 304A is made out. 5. The Hon'ble Supreme Court in (1998) 8 SCC 493 ; State of Karnataka v. Satish has observed as under : "4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged." 6. Having examined the facts of the present case, I find that the prosecution has not been able to prove that the petitioner was driving the vehicle rashly and negligently and in high speed. The accident which has occurred could be on the basis of the version as has been set up by the accused-petitioner and one cannot say that the version as pointed out by P.W.10 Birjusingh is not a probable one. Once there are two different probabilities available on record, the version which goes to the benefit of the accused has to be accepted. 7. In view of the above, I do not find it a fit case to hold the accused-petitioner guilty of the offences under Section 279, 304A IPC and deem it appropriate to give him the benefit of doubt and acquit him of the charges. 8. Accordingly, this revision petition is allowed. The orders passed by the trial Court dated 24.02.2003 as well as appellate Court dated 26.02.2004 are set aside. The accused petitioner is on bail, his bail bonds stand discharged.