S.B. Criminal Revision Petition No. 388/1994
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
Sujan Singh
Versus
The State of Rajasthan
S.B. CRIMINAL REVISION PETITION NO. 388/1994
Date of Order : 15.03.2011
PRESENT
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr. Prithvi Raj Singh for the petitioner
Ms. Chandralekha - Public Prosecutor
BY THE COURT
This revision petition is directed against the judgment
dated 19.11.1994 passed by learned Additional District and Sessions
Judge, Barmer in Criminal Appeal No. 10/1994, whereby the
learned appellate court dismissed the appeal filed by the
petitioner and upheld the judgment of conviction and order of
sentence dated 13.07.1994 passed by the learned Chief Judicial
Magistrate, Barmer against the petitioner in Criminal Case No.
220/1986. By the said judgment the learned trial court convicted
the accused-petitioner under Section 279, 304-A IPC and sentenced
him for the offence under Section 279 IPC to undergo simple
imprisonment for two months and to pay a fine of Rs.500/- and in
default of payment of fine, further to undergo simple
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S.B. Criminal Revision Petition No. 388/1994
imprisonment for 15 days and for the offence under Section 304-A
IPC, the accused-petitioner was sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.5000/- and in
default of payment of fine, further to undergo rigorous
imprisonment for six months.
The brief facts giving rise to the present revision
petition are that complainant Bhura Ram (P.W.5) lodged a written
report in the Police Station Barmer alleging therein that on
04.05.1986 in the evening at about 5.00 p.m. petitioner Sujan
Singh came driving a mini bus at fast speed and met with an
accident in which deceased Antari aged 5 years, who was crossing
the road, died. It was further alleged that the bus was stopped by
the driver a little further and the complainant and one Kishna Ram
ran after the bus from which driver Sujan Singh came out. It was
further alleged that the accident was caused due to rash and
negligent driving of the petitioner. On the aforesaid report, a
First Information Report bearing No. 124/1986 under Section 304-A
IPC was registered at the Police Station Barmer and the
investigation commenced.
After usual investigation police filed challan against
the petitioner for the offence under Section 279, 304-A IPC in the
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Court of Chief Judicial Magistrate, Barmer. The learned trial court
after trial convicted the petitioner under Section 279, 304-A IPC
and sentenced him as narrated above vide judgment and order
dated 13.07.1994.
The petitioner filed an appeal against the aforesaid
judgment and order of the trial court before the learned Additional
District and Sessions Judge, Barmer, who dismissed the said appeal
vide judgment dated 19.11.1994.
Aggrieved by the judgment of conviction and order of
sentence passed by the learned trial court which was upheld by the
learned appellate court while dismissing the appeal, the petitioner
has preferred this revision petition.
The learned counsel for the petitioner contended that
the learned trial court convicted the petitioner for the offence
under Section 279, 304-A IPC on the basis of the statements of
P.W.1 Kishna, PW.2 Jhoomri, P.W.5 Bhura Ram and P.W.8 Meera
and the learned trial court has erred in appreciating the evidence
of all these four witnesses because P.W.2 Jhoomri in her cross-
examination admitted the fact that after the accident when she
heard about death of Antari, then she reached the place of the
incident. Further P.W.5 Bhura ram has been declared hostile
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S.B. Criminal Revision Petition No. 388/1994
witness by the prosecution and he did not support the prosecution
story and P.W.8 Meera also admitted in her cross-examination that
after the accident she came out of her house, therefore, the
evidence of these three witnesses was not properly appreciated by
the learned trial court as well as by the learned appellate court
and regarding the evidence of P.W.1 Kishna, the learned counsel
for the petitioner contended that he also admitted in his cross-
examination that after hearing the sound of the accident, he
immediately rushed to the place of the incident and further he
admitted in his cross-examination that the deceased girl herself
came under the mini bus and thereby the accident took place.
Thus, the learned counsel for the petitioner submits that the
evidence of P.W.1 Kishna also does not support the prosecution
story that he saw the accident with his own eyes while the mini
bus was being driven by the petitioner in a rash and negligent
manner. The learned counsel for the petitioner further contended
that as per the site inspection memo (Ex.P.5) and site map
(Ex.P.6), the incident took place on the left side of the road where
the dead body of the girl was found 3 feet away from the left side
of the road, therefore, it cannot be said that at the time of the
accident the driver was driving the mini bus in such a manner so as
to drive it in wrong side.
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The learned Public Prosecutor contended that by
seeing the child girl, the driver of the mini bus, i.e. the petitioner,
could have stopped the vehicle or could have minimized its speed.
Thus, she defended the judgment of the learned trial court.
I have considered the rival contentions of both the
parties and perused the evidence available on the record. For the
offence under Section 279, 304-A IPC, the prosecution has to prove
the rash and negligent driving of the vehicle on the part of the
driver to prove his guilt beyond reasonable doubt. In the present
case, P.W.2 Jhoomri and P.W.8 Meera clearly admitted in their
evidence that they came out of their houses after coming into
knowledge of the fact of death of the deceased girl Antari and the
complainant P.W.5 Bhura Ram did not support the prosecution
story and has been declared hostile. Now if come to the evidence
of P.W.1 Kishna, it is clear that he also admitted that he came to
the place of the incident after hearing the sound of the accident
and further he admitted in his cross-examination that the deceased
girl herself came under the bus, therefore, the accident took
place. In my view, the appreciation of the evidence made by the
learned trial court as well as the learned appellate court is not
proper. Both the learned courts below have relied upon the
evidence of P.W.1 Kishna, P.W.2 Jhoomri and P.W.8 Meera,
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S.B. Criminal Revision Petition No. 388/1994
whereas in my view none of the witnesses have deposed anything
about the speed of the mini bus at the time of the incident and
further the site inspection memo (Ex.P.5) and site map (Ex.P.6)
does not show any rashness and negligence on the part of the
petitioner because at the relevant time the vehicle was being
driven by the petitioner on the left side of the road, therefore, the
testimony of P.W.1 Kishna, P.W.2 Jhoomri and P.W.8 Meera cannot
be relied upon about the rash and negligent act of the petitioner so
as to endanger the public life and to cause death of Antari by
driving the vehicle in rash and negligent manner. Accordingly, the
appreciation of the evidence as made by the learned trial court
and the learned appellate court being erroneous, the offence
under Section 279, 304-A IPC against the petitioner cannot be said
to be proved.
Resultantly, this revision petition is allowed and the
judgment of conviction and order of sentence dated 13.07.1994
passed by the learned trial court as well as the judgment of the
learned appellate court dated 19.11.1994 are set aside and
petitioner Sujan Singh S/o Sher Singh is acquitted of the charges
under Section 279 and 304-A IPC. The petitioner is on bail. His
bail bonds are hereby discharged.
[KAILASH CHANDRA JOSHI],J.
Pramod
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