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2024 DIGILAW 598 (MP)

Amar Lal v. State Of Madhya Pradesh

2024-09-02

MANINDER S.BHATTI

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ORDER : (Maninder S. Bhatti, J.) This revision has been filed by the applicant under Section 397/401 of the Cr.P.C. being aggrieved by judgment of conviction and order of sentence dated 31.07.2008 passed by the 17th Additional Sessions Judge, (Fast Track Court) Jabalpur in Criminal Appeal No.96/2008, whereby the applicant has been convicted under Section 304(A) of IPC and sentenced to undergo S.I. for 6 months and fine of Rs.300/- with default stipulations. 2. The facts as detailed in the memorandum of the revision reveal that a prosecution under Sections 279 and 304(A) of IPC was lodged against the applicant on the allegations that at around 9:35 AM on 18.12.2004, the present applicant while driving the vehicle rashly and negligently caused death of one Vijay Pal Singh as a result of which, a trial was conducted. The trial Court convicted the present applicant under Sections 279 and 304(A) of IPC. The order of the trial Court was assailed by filing an appeal before the 17th Additional Sessions Judge, Jabalpur. The Appellate Court, partly allowed the appeal. The Appellate Court set aside the conviction under Section 279 of IPC but upheld the conviction under Section 304(A) of IPC by which, the applicant was directed to undergo Simple Imprisonment of 6 months. 3. Learned counsel for the applicant at the very outset submits that in the present case, the original applicant was expired way back in the year 2009 and thereafter, his wife was permitted to prosecute this revision vide order dated 20.10.2009. It is contended by the counsel that in the present case, the trial Court as well as Appellate Court fell in error while convicting the applicant under Section 304(A) of IPC. It is contended by the counsel that in order to make out a case under Section 304(A) of IPC, it is incumbent upon the prosecution to establish that the act in question was rash and negligent which resulted in the death of the deceased. In the present case, none of the prosecution witnesses stated that on account of rash and negligent driving, the accident had taken place. On the contrary, the witnesses made futile attempt to state that the original applicant/accused was in the state of insobriety and in the said state, the offence in question was committed. In the present case, none of the prosecution witnesses stated that on account of rash and negligent driving, the accident had taken place. On the contrary, the witnesses made futile attempt to state that the original applicant/accused was in the state of insobriety and in the said state, the offence in question was committed. It is contended by the counsel that the said fact of the original applicant being intoxicated was not proved by any other corroborated evidence. The original applicant was never medically examined in order to ascertain as to whether he was in the state of insobriety or not, yet the aforesaid statements were taken into consideration by the Trial Court as well as Appellate Court while convicting the original applicant. It is contended by the counsel that merely, a vague statement of the original applicant being intoxicated could not have been made basis to convict him. It is thus, contended by the counsel that in absence of any evidence in that regard the original applicant could not have been convicted. 4. It is the further contention of the counsel that the conviction of the original applicant was primarily based on the testimonies of T.K. Goswami (PW-1) as well as Ganesh Singh (PW-7). In the entire testimonies of T.K. Goswami (PW-1) as well as Ganesh Singh (PW-7), it is nowhere stated that the applicant was driving the vehicle rashly and negligently. It is contended by the counsel that driving the vehicle at a high speed itself is not a ground to apply the rigors of Section 304 (A) of IPC. It is obligatory on the part of the prosecution to establish that the vehicle was being driven rashly and negligently and in support of his contention learned counsel for the applicant has placed reliance on the decision of the Apex Court in the case of Suleman Rehiman Mulani & Anr. Vs. State of Maharashtra ( 1967 SCC OnLine SC 337), decision of this Court in the case of Arvind Singh Rajput vs. State of M.P. (2011 SCC OnLine M.P. 2485) and the decisions of Delhi High Court in the cases of Abdul Subah vs. State (NCT of Delhi) (2006 SCC OnLine Del 1132), Ram Chander vs. State (2017 SCC Online Del 11763) and Kishore Chand Joshi vs. State (2018 SCC OnLine Del 12337). 5. 5. Per contra, learned counsel for the respondent submits that no interference with the impugned order is required inasmuch as, the applicant while driving the vehicle rashly and negligently, ran the same over the deceased as a result of which, the deceased was done to death and the entire incident was witnessed by the eye-witnesses namely T.K. Goswami (PW-1) as well as Ganesh Singh (PW-7) and they fully corroborated the prosecution story even they remained firm during the course of cross-examination as well. Hence it is contended by the counsel that the well reasoned findings so arrived at by the Trial Court as well Appellate Court do not require any interference in absence of any contrary evidence. It is, therefore, contended by the counsel that the revision deserves to be dismissed. 6. No other points is presses or argued by the parties 7. Heard the submissions and perused the record. 8. A perusal of record reflects that on the allegation of causing death of the deceased by rash and negligent of driving by the present applicant, the machinery of law was set in motion. The present applicant after filing of charge-sheet was confronted with a full fledged trial which ultimately ensued in conviction of the original applicant under Sections 279 and 304(A) of IPC. The Appellate Court though set aside the conviction so far as the same related to Section 279 of IPC but upheld the conviction under Section 304(A) of IPC. 9. Now in order to deal with the applicant's contention, if the record is perused, the same would reveal that on the basis of information of one T.K. Goswami (PW-1), who was working as Charge-man in the Vehicle Factory, Jabalpur, the First Information (Ex.P/11) was lodged. T.K. Goswami (PW-1) stated in the First Information Report that on 06.12.2004 he was deputed on duty to unload the cast iron scrap from vehicles and for that work he was standing outside the tyre godown and along with him one Santosh Chakrwarty was there. At around 9:35 AM, a vehicle LPTA bearing Chasis No.18013 which was being driven by the original applicant came at a high speed being driven negligently and the said vehicle dashed the deceased from the back and as a result of which, deceased later on succumbed to the injury in VFJ Hospital, Jabalpur. The prosecution in support of the same examined Shri T.K. Goswami (PW-1). The prosecution in support of the same examined Shri T.K. Goswami (PW-1). M.L. Shah (PW-2) was seizure witness. Dhaneswar Pandey (PW-3) turned hostile. Jitendra who was son of the deceased (PW-4), who was handed over the dead-body on supurdginama vide Ex.P/6. Santosh Chakrwarthi (PW-5) deposed in his testimony that he did not recognize the driver nor he had witnessed the accident. G.N. Singh (PW-6) was a person who had participated in the panchnama procedure. Ganesh Singh (PW-7) was also working as Security Supervisor with V.F.J. Jabalpur. V.D. Baswar (PW-8) and Waghmare (PW-9) are doctors and there were other witnesses like Investigating Officer also. 10. Now the evidence so adduced by the prosecution if is subjected to sifting, the same would reveal that there are testimonies of two witnesses namely Shri T.K. Goswami (PW-1) and Ganesh Singh (PW-7). T.K. Goswami (PW-1) in his examination-in-chief stated that on 06.12.2004, he was standing in front of gate no.3 and was deputed on scrap duty and at that time he heard a noise from his back and also heard scream made by some person and when he turned back, he found that vehicle LPTA bearing chasis no.18013 ran over the deceased. T.K. Goswami (PW-1) stated in paragraph 1 of his testimony that the original applicant/accused was driving a vehicle at a high speed. The said witness, in his cross-examination further stated that he had presumed the speed of the vehicle to be 100 kmph. Ganesh Singh (PW- 7) in examination-in-chief stated that he was going to perform the scrap duty and a vehicle at a high speed came from the opposite side and another person i.e. the deceased who was coming towards gate no.3 was ran over by the said vehicle, which was coming at the high speed and the vehicle, then jumped over a drainage and stopped near a tree. Ganesh Singh (PW-7) further stated that if the vehicle would not have stopped, the other persons would have come under the vehicle. The witness further stated that the original applicant/accused was not driving the vehicle properly and the original applicant/accused was driving the vehicle in the state of intoxication. Ganesh Singh (PW-7) further stated that if the vehicle would not have stopped, the other persons would have come under the vehicle. The witness further stated that the original applicant/accused was not driving the vehicle properly and the original applicant/accused was driving the vehicle in the state of intoxication. The same witness in his cross-examination stated that he did not inform the police that the original applicant/accused was driving the vehicle in the state of insobriety and he further stated that it was incorrect to say that the original applicant/accused did not drive the vehicle negligently. 11. The testimonies of aforesaid two witnesses have been taken into consideration by the trial Court as well as Appellate Court while convicting the original applicant/accused under Section 304(A) of IPC. 12. Section 304(A) of IPC is reproduced herein: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 13. A perusal of the aforesaid statutory provision reveals that an act should be rash or negligent capable to cause death of any person, therefore, the ingredients which are necessary to apply the Section 304(A) of IPC is that the act in question should be rash and negligent. 14. The Apex Court again in the case of State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 concluded that there must be death of the person as a result of an act which should be rash and negligent. 15. The Apex Court in the case of Balwinder Singh (supra) held in paragraph 10 as under: Section 304-A was inserted in the Penal Code by Penal Code (Amendment) Act 27 of 1870 to cover those cases wherein a person causes the death of another by such acts as are rash or negligent but there is no intention to cause death and no knowledge that the act will cause death. The case should not be covered by Sections 299 and 300 only then it will come under this section. The section provides punishment of either description for a term which may extend to two years or fine or both in case of homicide by rash or negligent act. The case should not be covered by Sections 299 and 300 only then it will come under this section. The section provides punishment of either description for a term which may extend to two years or fine or both in case of homicide by rash or negligent act. To bring a case of homicide under Section 304-A IPC, the following conditions must exist, namely, (1) there must be death of the person in question; (2) the accused must have caused such death; and (3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide. 16. The Apex Court in the case of State of Karnataka v. Satish, (1998) 8 SCC 493 held in paragraphs 3, 4 and 5 as under: 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304-A IPC after recording a finding that the respondent was driving the truck at a “high speed”. No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a “high speed”, both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 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”. 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. His bail bonds shall stand discharged. 17. The Apex Court in the case of Satish (supra) concluded that merely alleging that the vehicle was being driven at a high speed is not sufficient and the concept of "negligence" or "rashness" cannot be attached to "high speed". The Apex Court concluded that high speed is a relative term and it is for the prosecution to bring on record the material to establish as to what it meant by "high speed". 18. The prosecution in order to attract the penal provisions contained in Section 304(A) of IPC is required to establish that the act in question was rash and negligent. In the present case, the entire testimony of T.K. Goswami (PW-1), if perused from any angle, the same nowhere states that the vehicle in question was being driven by the original applicant/accused rashly and negligently. In the present case, the entire testimony of T.K. Goswami (PW-1), if perused from any angle, the same nowhere states that the vehicle in question was being driven by the original applicant/accused rashly and negligently. It is further important that the incident took place at the back of T.K. Goswami (PW-1) who heard the noise of the accident as well as scream of the deceased and then he only turned back and found that the said vehicle ran over the deceased then dashed a "Dharamkanta". This witness had not seen the vehicle before the accident, therefore, undisputedly, this person who had not noticed the vehicle prior to accident was not in a position to state as to whether the vehicle was at a high speed and was being driven rashly and negligently. 19. So far as testimony of Ganesh Singh (PW-7) is concerned again Ganesh Singh (PW-7) in his entire examination-in-chief nowhere stated that the vehicle was being driven rashly and negligently by the original applicant/accused. Ganesh Singh (PW-7) stated that the accused was not driving the vehicle properly what the witness meant by "properly" is not clear from his entire testimony. The witness did not whisper in the entire examination-in-chief that the original applicant/accused was driving the vehicle rashly and negligently. This witness further ventured upon to state that the original applicant/accused was in the state of intoxication but he further admitted that he was making the said statement regarding intoxication first time before the Court, therefore, undisputedly there is not a single document on the record to demonstrate that the original applicant/accused was in the state of intoxication. This witness in his cross-examination, though denied the query that the original applicant/accused was not driving the vehicle negligently but the fact remains that in the entire examination-in- chief, he has nowhere stated that the vehicle was being driven rashly and negligently. 20. The testimonies of the aforesaid two witnesses, if are subjected to scrutiny in the light of the aforesaid decisions of the Apex Court as well as Section 304(A) of IPC, it would reveal that there was failure on the part of the prosecution to establish that the vehicle was being driven rashly and negligently. The conviction is based on the testimonies of T.K. Goswami (PW-1) and Ganesh Singh (PW-7). The conviction is based on the testimonies of T.K. Goswami (PW-1) and Ganesh Singh (PW-7). Both the witnesses nowhere stated in their statements that the vehicle in question was being driven rashly and negligently. It is needless to emphasize that the prosecution was required to prove the charges beyond reasonable doubt but in the present case, there was failure on the part of the prosecution to prove the charge under Section 304(A) of IPC. 21. Hence this Court is of the considered view that the judgment of the Trial Court as well as Appellate Court deserve to be quashed. 22. Accordingly, the impugned judgments of Trial Court dated 22.02.2008 as well as Appellate Court dated 31.07.2008 stand quashed. The deceased applicant would be treated to be acquitted. 23. With the aforesaid, criminal revision stands allowed.