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2024 DIGILAW 333 (UTT)

Jeevan Kumar v. State of Uttarakhand

2024-05-13

RAVINDRA MAITHANI

body2024
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this revision is made to the followings: (i) Judgment and order dated 05.07.2019 passed in Criminal Case No. 12869 of 2013, State of Uttarakhand vs. Jeevan Kumar, by the court of Additional Chief Judicial Magistrate/3rd Additional Civil Judge (S.D.), Rudrapur, District Udham Singh Nagar (“the case”). By it, the revisionist has been convicted under Sections 279, 304A and 427 IPC and sentenced as follows: (a) Under Section 279 IPC - rigorous imprisonment for a period of six months and a fine of Rs. 500/-. In default of payment of fine, additional rigorous imprisonment for a period of fifteen days. (b) Under Section 304A IPC - rigorous imprisonment for a period of one year and a fine of Rs. 5,000/-. In default of payment of fine, additional rigorous imprisonment for a period of two months. (c) Under Section 427 IPC - fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for a period of fifteen days. (ii) Judgment and order dated 21.10.2023 passed in Criminal Appeal No. 226 of 2019, Jeevan Kumar vs. State of Uttarakhand, by the court of 3rd Additional Sessions Judge, Rudrapur, Udham Singh Nagar, by which the appeal has been dismissed and the judgment and order passed in the case affirmed. 2. Heard learned counsel for the parties and perused the record. 3. The prosecution case, briefly stated, is as follows. 4. On 05.04.2022, PW-1 Dharmendra Gupta was riding on a motorcycle driven by his father Shiv Dayal Gupta (“the deceased”). At 06:00 in the evening, the deceased stopped the motorcycle to answer the call of the nature. Meanwhile, the FIR states, a vehicle bearing registration No. PB 29 E 9225 (“the vehicle”) being driven in rash and negligent manner hit the deceased, due to which the deceased died on the spot. PW-1 Dharmendra Gupta lodged the FIR, which the basis of Case Crime No. 27 of 2012, under Sections 279, 304A, 427 IPC, P.S. Dineshpur, District Udham Singh Nagar. After investigation, charge sheet was submitted against the revisionist under Sections 279, 304A, 427 IPC. This is the basis of the case. 5. The accusation was read over to the revisionist on 14.12.2012. He did not accept the accusation and claimed trial. 6. After investigation, charge sheet was submitted against the revisionist under Sections 279, 304A, 427 IPC. This is the basis of the case. 5. The accusation was read over to the revisionist on 14.12.2012. He did not accept the accusation and claimed trial. 6. In order to prove its case, the prosecution examined as many as six witnesses, namely, PW-1 Dharmendra Gupta, PW-2 Rohit Kumar Gupta, PW-3 Dr. SS Kunwar, PW-4 Rajkumar Munjal, PW-5 HCMT RD Bhatt and PW-6 SI Yogesh Kumar. 7. After the prosecution evidence, the revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973. He did not accept the prosecution case. According to him, he was falsely implicated. 8. By the impugned judgment and order dated 05.07.2019, the revisionist was convicted and sentenced as stated hereinabove, which was unsuccessfully challenged by the revisionist in appeal. 9. On 07.05.2024, when the revision was taken up for hearing, the learned counsel for the revisionist submitted that he would argue on the quantum of sentence only. He would submit that the sentence is excessive; the revisionist has already undergone almost half of the sentence. On that date, the revision was admitted on the quantum of sentence. 10. Learned counsel for the revisionist would submit that the revisionist has been sentenced for a maximum period of one year and he has already undergone half of the sentenced; therefore, no purpose would be served if he is still kept in the custody. 11. When the file was perused, the Court wanted to know from the learned counsel for the revisionist as to what is the evidence against the revisionist? He would submit that the PW-1 Dharmendra Gupta has named the revisionist based on the statement of the owner of the vehicle. 12. Learned State Counsel would submit that the revisionist himself surrendered in the matter in the court concerned and he also got the vehicle released, which was taken into custody by the police. 13. PW-1 Dharmendra Gupta is the informant in the case. According to him, he was riding the motorcycle with the deceased; suddenly, the vehicle hit the deceased, due to which he died. In the last two sentence of his examination-in-chief, PW-1 Dharmendra Gupta has said that the driver of the vehicle was the revisionist and his name was told to this witness by the owner of the vehicle. 14. According to him, he was riding the motorcycle with the deceased; suddenly, the vehicle hit the deceased, due to which he died. In the last two sentence of his examination-in-chief, PW-1 Dharmendra Gupta has said that the driver of the vehicle was the revisionist and his name was told to this witness by the owner of the vehicle. 14. PW-2 Rohit Kumar is the witness of inquest. He is not an eyewitness. PW-3 Dr. S.S. Kunwar is the doctor, who conducted the post-mortem of the deceased. He has proved the post-mortem report, Ex. A-3. PW-4 Rajkumar Munjal is another eyewitness. He has corroborated the statement of PW-1 Dharmendra Gupta, but in his cross-examination, he has stated that he did not see the driver. PW-5 HCMT RD Bhatt is the police officer of Mechanical Branch. He technically inspected the vehicle. PW-6 SI Yogesh Kumar is the Investigating Officer. He has stated as to what had been done by him during investigation. According to him, the revisionist had surrendered during investigation and he had also taken the statement of the revisionist. 15. It is a revision. The scope is quite restricted to the extent of examining the correctness, legality and propriety of the impugned judgment and order. In a criminal revision, generally evidence is not evaluated, unless the finding is based on inadmissible evidence or when admissible evidence is not considered or the finding is perverse i.e. against the weight of any evidence. 16. In the instant case, the prosecution has not even shown that the revisionist was driving the vehicle at the relevant time, when it hit the deceased. The basis of conviction of the revisionist is on three counts, namely (i) the vehicle was involved in the accident, (ii) the revisionist did surrender before the court and (iii) the revisionist being owner of the vehicle got the vehicle released in his favour. 17. If a person surrenders into custody, it is not a presumption of his guilt. Being a suspect, a person may surrender to custody or may at times seek anticipatory bail, but drawing such an inference to the extent of conviction is not permissible in the eyes of law. 18. If the revisionist is the owner of the vehicle and the vehicle is involved in the accident, it per se does not establish the guilt of the owner. 18. If the revisionist is the owner of the vehicle and the vehicle is involved in the accident, it per se does not establish the guilt of the owner. Even if, the owner of the vehicle got released the vehicle in his favour, it also does not establish the guilt of the owner of the vehicle. The prosecution could have got the information from the owner of the vehicle as to who was driving the vehicle. The owner or some person in that respect could have been examined. 19. In so far as the evidence is concerned, PW-1 Dharmendra Gupta in last two lines has stated that the revisionist was driving the vehicle. In the next sentence, he has also given the source as to who told him the name of the revisionist and the source, as per this witness, is the owner of the vehicle, who told him the name of the driver i.e. the revisionist. But, the prosecution otherwise says that the revisionist is the owner of the vehicle. It further doubts the statement of PW-1 Dharmendra Gupta. PW-1 has not identified the revisionist as a person, who was driving the vehicle at the relevant time. 20. The prosecution has been successful in establishing and proving that the vehicle was involved in the accident. In fact, the driver of the vehicle had left the vehicle at a distance, but had managed to escape. But, there is no evidence even to suggest that the revisionist was driving the vehicle at the relevant time. 21. In view thereof, this Court is of the view that an interference is warranted by this Court. Accordingly, the criminal revision deserves to be allowed and the judgment and order passed in the case as well as in the appeal deserves to be set aside. 22. The criminal revision is allowed. The judgment and order dated 05.07.2019 passed in the case and the judgment and the order dated 21.10.2023 passed in the appeal are set aside. The revisionist is acquitted of the charges under Sections 279, 304A and 427 IPC. 23. The revisionist is in jail. Let he be released forthwith, if not wanted in any other case. The bail bond of the revisionist is cancelled and the sureties are discharged of their liabilities. 24. Let a copy of this judgment along with the lower court record be forwarded to the court concerned.