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2023 DIGILAW 2284 (RAJ)

Suresh Kumar v. State of Rajasthan

2023-12-20

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : Mr. Mahendar Kumar Goyal, J. - This criminal revision petition has been preferred by the accused-petitioner assailing the legality and validity of the judgment dated 10.03.2003 passed by learned Additional Sessions Judge No.2, Sikar Camp Sri. Madhopur (for brevity, "learned Appellate Court") in Criminal Appeal No. 2/2002 whereby, while dismissing the appeal preferred by the petitioner, the judgment dated 07.02.2002 passed by Judicial Magistrate 1st Class, Ringus (for brevity, "learned trial Court") in Criminal Case No.36/1991, BT 419/93 convicting and sentencing him as under, has been upheld:- (i) Section 279 IPC - Two months rigorous imprisonment and Rs. 200 fine, in default whereof, five days simple imprisonment. (ii) Section 337 IPC - Two months rigorous imprisonment and Rs. 300 fine, in default whereof, five days simple imprisonment. (iii) Section 338 IPC - Six months rigorous imprisonment and Rs. 500 fine, in default whereof, ten days simple imprisonment. (iv) Section 304A IPC - One year rigorous imprisonment and Rs. 200 fine, in default whereof, simple imprisonment of one month. 2. All the sentences to run concurrently. 3. The relevant facts in brief are that on Parcha Bayan dated 29.12.1990 of the injured Shankar Lal Yadav, an FIR No.140/1990 came to be lodged at Police Station Ringus, District Sikar under Sections 279 and 337 IPC wherein, it was stated that on account of rash and negligent driving by the petitioner, the jeep bearing No.RJ23-0474 turned turtle after colliding with a tree on 29.12.1990 at about 11 A.M. resulting in injuries to various passengers. 4. During course of investigation, one of the injured-Shri Gopal expired on account of injuries received in the accident. After investigation, the police filed charge-sheet against the petitioner under Section(s) 279, 337, 338 and 304-A IPC. Charges were framed against the petitioner under the aforesaid provisions who pleaded not guilty and demanded trial. After trial, the learned trial Court convicted and sentenced the petitioner as stated hereinabove. The criminal appeal preferred there against by the petitioner has also been dismissed by the learned Appellate Court vide its judgment dated 10.03.2003. 5. Assailing the impugned judgment, learned counsel for the petitioner made three-fold submissions. Firstly, he submitted that there is no evidence on record to establish that either he was driving the vehicle or it was being done rashly and negligently. He submitted that he was not subjected to test identification parade. 5. Assailing the impugned judgment, learned counsel for the petitioner made three-fold submissions. Firstly, he submitted that there is no evidence on record to establish that either he was driving the vehicle or it was being done rashly and negligently. He submitted that he was not subjected to test identification parade. Inviting attention of this Court towards the deposition of Shri. Narendra Singh (PW-4)-the Investigating Officer, he further submitted that he has stated in his examination-in-chief that finding the offence under Section(s) 279, 337, 338 and 304-A IPC to be prima facie established against the petitioner, he handed over the case file to the Station House Officer. Referring to his cross-examination, he submitted that he has denied that the accident occurred on account of negligence of the jeep driver. His another limb of submission is that the post-mortem report of body of Gopal (Ext. P-14) was not proved by its author, in absence whereof, it could not have been assumed that he expired on account of injuries received in the accident. Lastly, the learned counsel submitted that the mechanical inspection report of the vehicle (Ext. P-13) was not admissible in evidence as it was prepared by a Head Constable and not by the Officer of the Transport Department as envisaged under Rule 8.6 of the Rajasthan Motor Vehicles Rules, 1990 (for brevity, "the Rules of 1990"). He, therefore, prays that this criminal revision petition be allowed, the judgment of learned Appellate Court dated 10.03.2003 be quashed and set aside and the petitioner may be acquitted from the charges levelled against him. 6. Per contra, learned Public Prosecutor, supporting the findings recorded by the learned Courts, would submit that there are concurrent finding of facts recorded against the petitioner based on cogent evidence available on record which do not warrant any interference of this Court under its limited revisional jurisdiction. Drawing attention of this Court towards the deposition of complainant- Shankar (PW-5)- an injured eye-witness, he would submit that he has stated specifically therein that ignoring his objection, the petitioner overtook two-three vehicles and hit the tree. He further submits that from the material on record, it is established that the accident occurred on account of rash and negligent driving resulting in death of Gopal, one of the passengers and grievous/simple injuries to many other passengers. He, therefore, prays for dismissal of the revision petition. 7. Heard. Considered. 8. He further submits that from the material on record, it is established that the accident occurred on account of rash and negligent driving resulting in death of Gopal, one of the passengers and grievous/simple injuries to many other passengers. He, therefore, prays for dismissal of the revision petition. 7. Heard. Considered. 8. The learned trial court has convicted the petitioner relying upon the oral as well as documentary evidence available on record. Shri. Shankar Lal (PW5), one of the injured passengers and complainant, has stated that the jeep was being driven very fast by the petitioner and he overtook two-three vehicles despite objection raised by him. This Court has also gone through his deposition and finds that his testimony has remained unimpeached as he was not subjected to cross examination on the aforesaid aspect. Negligent driving of the petitioner has been corroborated by other injured passengers namely Sohni (PW1), Surja (PW2) and Jagdish (PW3). The learned trial court has also relied upon the site plan (Ext. P11) which reveals that the jeep hit the tree standing on side of the road which, the investigating officer Narendra Singh (PW4) has testified to be 7-8 feet away from the road. A perusal of the site plan reveals that at the place of incident, the road is straight and in absence of any such plea in defence that the accident occurred on account of a vehicle coming wrong side from opposite direction, there was no reason for the vehicle to have collided with the tree far away from the road except the rash and negligent driving on the part of the petitioner which, otherwise is established from the evidence on record. The sole defence of the petitioner that the accident occurred as the jeep slipped on account of rain, has rightly been disbelieved by the learned trial court as an afterthought inasmuch as no such suggestion was made to any of the prosecution witnesses in their cross examination. 9. The findings have been affirmed by the learned Appellate Court re-appreciating the evidence on record. This Court finds no reason to interfere with the well reasoned findings recorded by the learned courts based on cogent evidence on record under its limited revisional jurisdiction. 8. 9. The findings have been affirmed by the learned Appellate Court re-appreciating the evidence on record. This Court finds no reason to interfere with the well reasoned findings recorded by the learned courts based on cogent evidence on record under its limited revisional jurisdiction. 8. The scope of interference by this Court in its revisional jurisdiction has succinctly been laid down by the Hon'ble Supreme Court in State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 as under:- "5. xxxxxxxxxxxxxxxx In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence." 9. The Hon'ble Supreme Court, in yet another case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015) 3 SCC 123 , held as under:- "14. xxxxxxxxxxxxxxxx Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court Under Sections 397 to 401 Cr PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction." 10. Submissions of the learned counsel for the petitioner are wholly misconceived. His submission that neither he was subjected to any test identification parade nor, the prosecution led any evidence to establish that he was driver of the vehicle at the relevant time, does not merit acceptance in view of his statement recorded under Section 313 Cr.P.C. as also his deposition as DW1 wherein, rather than disputing that he was driving the jeep at the relevant time, his sole defence has been that the accident occurred as the jeep he was driving, slipped on account of rain resulting into accident. 11. Similarly, his submission qua postmortem report cannot be accepted in view of finding of the learned trial Court that petitioner's learned counsel has admitted the injury reports as also the postmortem report of the deceased Gopal. Even otherwise also, it has not been defence of the petitioner during trial that Shri. Gopal did not die on account of injuries received in the accident. 12. The Hon'ble Supreme Court has held in case of Akhtar & Ors. v. State of Uttaranchal as under: "16. It has been argued that non-examination of the concerned medical officers is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 of the Cr PC. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 of the Cr PC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under Sub- section (3) of Section 294 Cr PC. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined." 13. The last submission of the learned counsel for the petitioner qua violation of the Rule 8.6 of the Rules of 1990 cannot be countenanced. The aforesaid provision has no applicability in the criminal investigation. Even otherwise also, in absence of any such defence that the accident occurred on account of some mechanical failure in the vehicle, this court fails to understand the significance of mechanical inspection which otherwise also, has not been subject matter of dispute at any stage in view of the admitted facts as stated hereinabove. 14. Resultantly, this revision petition is dismissed being devoid of merit. 15. Since, the petitioner is on bail, he is directed to surrender before learned trial Court within a period of four weeks to serve the sentence.