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2017 DIGILAW 1892 (RAJ)

Banti Khateek v. State of Rajasthan

2017-08-24

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. Petitioner has preferred this revision petition aggrieved by Judgment dated 30.05.2008 passed by Additional Sessions Judge (Fast Track), No. 4, Jaipur City, Jaipur whereby, dismissed the appeal and confirmed the judgment dated 28.06.2007 passed by Additional Judicial Magistrate, No. 7, Jaipur City, Jaipur in Criminal Case No. 326/2006 whereby the trial Court convicted the accused-petitioner for offence under Section 279, 304-A I.P.C. and awarded sentence of 6 months simple imprisonment and Rs. 1,000/- fine in default to further undergo 15 days simple imprisonment for offence under Section 279 I.P.C. and 2 years simple imprisonment and fine of Rs. 1,000/- and in default to further undergo simple imprisonment of 15 days for offence under Section 304-A I.P.C. 2. Briefly stated facts of the case are that on 01.06.2006, F.I.R, Ex.P-4 was lodged by Bisraj Jogi alleging therein that his niece, Komal aged 5 years was playing near her house at 9:00 AM in the morning. The petitioner while reversing his Indica car bearing Registration No.RJ-14-5C-8302 hit Komal, as a result of which she sustained injuries. She was taken to Satellite Hospital where the doctors declared her dead. The Police after investigating submitted charge-sheet against the petitioner. As many as 8 witnesses were examined on behalf of the prosecution and documents were exhibited. 3. The Court after examining the petitioner under Section 313 Cr.P.C., 1973 heard the arguments and convicted the petitioner for offence under Sections 279 and 304-A I.P.C. Aggrieved by the judgment of conviction and sentence, petitioner preferred an appeal which stood dismissed. 4. It is contended by counsel for the petitioner that there is no independent witness in this case. PW-1 Meghraj, PW-2 Bisraj and PW-5 Rajendra are all uncles of the deceased who are interested witnesses. 5. It is contended that rash and negligence is not established by the prosecution. Petitioner was reversing his car when the deceased came out of the house to collect her ball and got injured by the car. It is also contended that the car was being reversed at slow speed as is evident from the statement of the Investigating Officer PW-6 Krishankant Sharma who has stated that the car stopped on point 'x'. 'X' is the point where the accident took place. 6. It is also contended that the car was being reversed at slow speed as is evident from the statement of the Investigating Officer PW-6 Krishankant Sharma who has stated that the car stopped on point 'x'. 'X' is the point where the accident took place. 6. It is further contended that the presence of the eye witnesses is doubtful as they are not the resident of the have in-front of which the incident took place. They are all chances witnesses. 7. It is also contended that from the statement of PW-7 Dr. B.L. Meena, it is revealed that one injury was caused on the parietal region which was not apparent from bare examination but there was blood clot as a result of which Komal expired. 8. Learned Public Prosecutor has opposed the revision petition. His contention is that there is concurrent finding of Courts below and revisional jurisdiction should not be exercised where there is finding of act. 9. It is also contended that the petitioner did not blow the horn when he was reversing the vehicle which tant-amounts to rash and negligent act. 10. I have considered the contentions and have perused the evidence and have also carefully perused the site plan Ex.P-1. 11. In Ex.P-1, the vehicle is shown to be reversed from the spot 'A' toward point 'x'. The distance between this point 'A' to 'x' according to the Investigating Officer is 10 steps, behind spot 'x' is the house of Rajendra Jogi. 12. The statements of PW-5, Rajendra that the petitioner was reversing the vehicle at the speed of 70 to 80 KM per hour but the same witness later stated the speed to be 30 to 40 KM per hour cannot be accepted for the simple reason that the place where the accident occurred was at distance of only 10 steps from the place where vehicle was reversed. It is also pertinent to note that after the accident, the vehicle stopped at point 'x', where the accident occurred meaning thereby that it was not reversed at high speed. It has also come in evidence that the vehicle did not collide with the wall of the house which further goes to show that the vehicle was reversed at slow speed. 13. PW-5 has further in his cross-examination stated that the deceased came out of the house to collect ball. It has also come in evidence that the vehicle did not collide with the wall of the house which further goes to show that the vehicle was reversed at slow speed. 13. PW-5 has further in his cross-examination stated that the deceased came out of the house to collect ball. If a driver is reversing the car and distance between car and incident is merely 10 steps and a child comes suddenly behind the car, the chances of the driver seems to be seeing the child negligible. The width of the road is only 18 feet thus while reversing from one side of the road to the other side, there was hardly any space for driving the vehicle at high speed. 14. As far as presence of the present witnesses is concerned, Meghraj, Bisraj and Rajendra are all chance witnesses who happen to pass from that way and who state that they have seen the occurrence. It is a natural human conduct that if they would have seen the car reversing and the girl behind the car they would have surely raised an alarm to the driver to stop the vehicle. The presence of these witnesses is therefore, doubtful. 15. The incident is stated to have taken place on 9:00 AM in the morning, as per the prosecution witnesses, independent witnesses have witnessed the incident. Prosecution has failed to produce those witnesses before the Court. PW-2 Bisraj is not a reliable witness. In his cross-examination he has stated that the child was sitting at a distance of 3 to 4 steps from where he was sitting. He was not aware of the speed of the vehicle. His conduct is also unnatural because having seen the vehicle, it is natural conduct of a person to raise an alarm if there is a child behind the vehicle. The Court below have overlooked this important aspect of the matter and have not discussed the site plan while convicting the petitioner. 16. In view of the same, the revision petition deserves to be and is, accordingly, allowed. Judgments of conviction and sentence passed by the Court below is quashed and set aside. Petitioner is acquitted of the charges under Section 279 and 304 I.P.C. 17. Petitioner is directed to furnish bail bonds to the tune of Rs. 16. In view of the same, the revision petition deserves to be and is, accordingly, allowed. Judgments of conviction and sentence passed by the Court below is quashed and set aside. Petitioner is acquitted of the charges under Section 279 and 304 I.P.C. 17. Petitioner is directed to furnish bail bonds to the tune of Rs. 20,000/- and one surety of like amount to the satisfaction of the trial Court within two months of the date of this order to the effect that he will appear before the Apex Court if summoned. 18. Record of the Court below be returned forthwith.