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2020 DIGILAW 92 (MP)

Suraj Maneshwar v. State of M. P.

2020-01-14

VISHNU PRATAP SINGH CHAUHAN

body2020
ORDER 1. The applicant has been convicted vide judgment dated 19.9.2018 passed by the learned Chief Judicial Magistrate, Sehore, in R.C.T. No. 1714/2012 for offence punishable under sections 279, 337 (5 counts), 304-A (2 counts) of IPC and sentenced under section 337 of IPC to undergo R.I. for 6 months and fine of Rs. 500/- (for each count), and under section 304A of IPC to undergo R.I. for 2 years and fine of Rs. 5000/- (for each count). In criminal appeal No. 98/2018 vide judgment dated 19.11.2019, the learned Second Additional Sessions Judge, Sehore, partly allowed the appeal by affirming the conviction of the applicant for the aforesaid offences but his jail sentence was modified as per section 71 of IPC and cumulatively sentenced him for offence under section 304A of IPC to undergo 1 year rigorous imprisonment with fine of Rs. 12,500/-, with default stipulation. Being aggrieved by the aforesaid judgments, the applicant has preferred the present criminal revision under section 397/401 of the CrPC. 2. The brief facts giving rise to the filing of the present revision, in short, are that, on 8.8.2012, the applicant was driving a vehicle Tavera bearing registration No. MP50-BC-0536. The complainant Swapnil Chaurasia alongwith Sanjay Chaurasia, Seema Chaurasia, Maayanta @ Priya Chaurasia, Shobha Chaurasia, Devendra Dubey and Abhishek Parashar were travelling in that vehicle. At about 4.30 a.m., the vehicle went off the road and fell into a side pit which was filled with water and turned turtle. The persons sitting in the vehicle received injuries. They were shifted to hospital for proper treatment. Shobha Chaurasia and Sanjay Chaurasia succumbed to the injuries, whereas Swapnil Chaurasia, Seema Chaurasia, Maayanta @ Priya Chaurasia, Devendra Dubey and Abhishek Parashar received simple injuries. Matter was reported to Police Station-Kotwali, District-Sehore and FIR was registered at crime No. 567/2012. After completing the investigation, charge-sheet was filed before the Court of CJM, Sehore. 3. Learned trial Court after completing the trial, delivered a judgment on 19.9.2018, convicting the applicant for offence punishable under sections 279, 337 (5 counts), 304A (2 counts) of IPC and sentenced him as mentioned above. The applicant being aggrieved by that conviction and sentence, preferred an appeal which was registered as Criminal Appeal No. 98/2018. 3. Learned trial Court after completing the trial, delivered a judgment on 19.9.2018, convicting the applicant for offence punishable under sections 279, 337 (5 counts), 304A (2 counts) of IPC and sentenced him as mentioned above. The applicant being aggrieved by that conviction and sentence, preferred an appeal which was registered as Criminal Appeal No. 98/2018. After hearing both the parties, the learned Second Additional Sessions Judge, Sehore, vide judgment dated 19.11.2019 partly allowed the appeal by affirming the conviction of the applicant under sections 279, 337 (5 counts), 304A (2 counts) of IPC, however, sentence was modified as per section 71 of IPC by cumulatively sentencing him for offence under section 304A of IPC to undergo 1 year rigorous imprisonment with fine of Rs. 12,500, with default stipulation. 4. Learned counsel for the applicant submits that both the Courts below have not appreciated the evidence in proper perspective. At the time of incident, the applicant was carefully driving the vehicle. The road was slippery due to rainy season, and the vehicle went off the road and turned turtle in road side pit. The applicant tried its best to stop the vehicle but due to slippery road, the vehicle could not stop and turned turtle. The accident was not caused due to rash and negligent driving of the applicant. None for the witnesses has stated that the applicant was driving the vehicle in rash and negligent manner. Both the Courts below have committed gross error in convicting and sentencing the applicant for the aforesaid offences. In such circumstances, it is prayed that this revision be allowed by setting aside the conviction and sentence passed by both the Courts below and the applicant be acquitted. 5. On the other hand, learned Deputy Government Advocate for the State submits that both the Courts below have not committed any error in convicting and sentencing the applicant. There is no illegality or perversity visible in the judgments passed by both the Courts warranting interference by this Court in concurrent finding of conviction given by both the Courts below. Thus, the revision filed by the applicant deserves to be set aside. 6. Heard the learned counsel for the parties at length and perused the record of both the Courts below. 7. Thus, the revision filed by the applicant deserves to be set aside. 6. Heard the learned counsel for the parties at length and perused the record of both the Courts below. 7. From a perusal of the statement of witnesses, it is evident that the complainant Swapnil Chaurasia (PW1), who was present in the vehicle at the time of incident, has stated that the vehicle was driven by the applicant but in para 2, he has categorically stated that the accident occurred in the early morning between 4.30 a.m. to 5 a.m. and he was sleeping at that time. He could not say how the applicant was driving the vehicle when the accident occurred. He woke up on hearing the noise of his mother and found that the vehicle fell in a pit which was filled with water and turned turtle. Seema Chaurasia (PW2) who was also in the vehicle at the time of incident has categorically stated that the incident occurred due to negligent act of the applicant because he was napping at that time and he should not have driven the vehicle. This witness has also stated that she warned the applicant to stop the vehicle but the applicant did not stop the vehicle. In para 2, she has categorically stated that the applicant was feeling drowsiness, therefore, she asked the applicant to stop the vehicle at 2-3 dhabas but the applicant refused to stop the vehicle on the pretext that he will take stop at some better dhaba. 8. Priya @ Manyata Chaurasia (PW3) has stated that the applicant was driving the vehicle but admitted that as she was sleeping at the time of incident, she has no knowledge as to how the accident took place. Devendra Dubey (PW4) has also stated that the vehicle was driven by the applicant. He has further stated that they were travelling in the night and they also stopped the vehicle at 3-4 dhabas before the incident occurred. Though he has stated that the applicant was driving the vehicle in fast speed but in cross-examination, he has admitted that he was sleeping at the time of incident and he has no knowledge as to how the applicant was driving the vehicle at the time of accident and how the accident occurred. Santosh Malviya (PW5) who pulled the vehicle from the pit, has turned hostile. Santosh Malviya (PW5) who pulled the vehicle from the pit, has turned hostile. Prahlad Singh (PW10) has stated that he examined the vehicle and found that steering, transmission system, brake, back light and tyres were in good condition but as the vehicle faced an accident, dent was there and head-lights and side mirrors were broken. 9. On considering the statement of the witnesses who were sitting in the vehicle, it appears that all these witnesses have categorically stated that the vehicle was driven by the applicant at the time of incident. One witness Seema Chaurasia (PW2) has stated that the applicant was napping while driving the vehicle. She asked the applicant to stop the vehicle at any dhaba but the applicant refused to stop the vehicle. Her statement has been corroborated by the statement of other witnesses. Devendra Dubey (PW4) has stated that before the incident, they stopped the vehicle at 3-4 dhabas for about 15 to 30 minutes. It was rainy season and the vehicle was driven by the applicant in the night and at about 4.30 a.m. the accident occurred and the vehicle fell in a pit which was filled with water and turned turtle. However, none of the witnesses has stated that the applicant was driving the vehicle in rash and negligent manner. It was early morning when the accident occurred. It cannot be presumed that the applicant was driving the vehicle in rash and negligent manner at the time of incident. 10. In a criminal case, it is for the prosecution to prove its case beyond doubt. The prosecution was duty bound to establish the case that the applicant was driving the vehicle in rash and negligent manner. None of the prosecution witnesses has stated that the applicant was driving the vehicle in rash and negligent manner or in excessive speed at the time of accident. Almost all the witnesses have stated that they were sleeping when the accident occurred. They woke up only after the accident and were rescued by others. 11. From a perusal of spot map, Ex.P-22 and FIR, Ex.P-21, it is apparent that the place of incident is a highway at BhopalIndore road. Almost all the witnesses have stated that they were sleeping when the accident occurred. They woke up only after the accident and were rescued by others. 11. From a perusal of spot map, Ex.P-22 and FIR, Ex.P-21, it is apparent that the place of incident is a highway at BhopalIndore road. Highways are meant for driving the vehicles in speed but not excessive speed and if the applicant was driving the vehicle in speed then, it cannot be said that he was driving the vehicle in a rash and negligent manner. 12. In the present case, witnesses have stated that they have no knowledge as to how the applicant was driving the vehicle at the time of incident because they were sleeping. Some witnesses have stated that they saw the applicant driving the vehicle in speed before they fell asleep. If the applicant was driving the vehicle in speed on the highway, then it cannot be said that it is a negligent act on the part of the applicant unless and until it is proved that the vehicle is driven in excessive speed beyond the control of the applicant. 13. In rainy season, if the vehicle slipped of the road and turned turtle due to slippery road, it cannot be said that the applicant was driving the vehicle in rash and negligent manner. The prosecution has failed to prove beyond reasonable doubt that the accident occurred due to rash and negligent driving of the applicant. The prosecution could not establish the main ingredients 'rash' and 'negligent' driving, which is mandatory requirement for conviction under section 279 and for other offences, and, therefore, in absence thereof, the applicant cannot be convicted for offence punishable under sections 279, 337 or 304A of IPC. Both the Courts below have committed an error in convicting and sentencing the applicant for offence punishable under sections 279, 337 and 304A of IPC. 14. On the basis of the aforesaid discussion, the revision filed by the applicant is hereby allowed. Conviction and sentence of the applicant for offence punishable under sections 279, 337 and 304A of IPC is hereby quashed. The applicant is acquitted from the charges of the aforesaid offences. 15. At present, the applicant is in jail, therefore, it is directed that he be released forthwith, if not required in any other case. 16. Conviction and sentence of the applicant for offence punishable under sections 279, 337 and 304A of IPC is hereby quashed. The applicant is acquitted from the charges of the aforesaid offences. 15. At present, the applicant is in jail, therefore, it is directed that he be released forthwith, if not required in any other case. 16. Copy of the order be sent to both the Courts below along with their records for information and compliance.