Rajasthan High Court - Jaipur
Ishari Singh vs State Of Rajasthan And Anr. on 12 December, 1996
Equivalent citations: 1997CRILJ2222, 1997(3)WLC253, 1996(2)WLN477
ORDER Amaresh Ku. Singh, J.
1. Heard the learned counsel for the petitioner, learned Public Prosecutor for non-petitioner No. 2 and the learned counsel for non-petitioner No. 2.
2. This criminal miscellaneous petition under Section 482 of the Criminal Procedure Code is directed against the order dated 1st July, 1996 passed by the learned District and Sessions Judge, Hanumangarh in Criminal Revision No. 44/96 whereby he accepted the revision petition and set aside the order passed by the learned Chief Judicial Magistrate, Hanumangarh, on 23rd January, 1996. By the aforesaid order dated 23rd January, 1996 the learned Chief Judicial Magistrate, Hanumangarh took cognizance of the offences punishable under Sections 279, 337 and 304A of the Indian Penal Code on the basis of final report submitted under Section 173 of the Criminal Procedure Code in relation to Criminal Case No. 650/95 registered at Police Station, Hanumangarh.
3. The facts of the ease may be briefly summarised as below:
On 1st December, 1995 at 10.45 a.m. Yudhishtar lodged a First Information Report at the Police Station, Hanumangarh in ,which he stated that on previous night he along with Gajendra, Vijay, Mahavir Prasad and Hanumun Singh was going in a Maruti car 10 Dungarpur in order to attend the marriage of his niece and the car was being driven by Dharamveer alias Billu. When the car reached beyond Shergarh bus stand the car was turned upside down and in consequence the first informant Yudhishtar and other persons who were silting in the car received injuries. The injured persons were taken to Sainy hospital in a truck where they were given medical treatment. The condition of Hanuman Singh was serious, he was therefore shifted to Government Hospital, Hanumangarh. where in spite of medical treatment he expired. It was also alleged in the First Information Report that the car was being driven by Dharamveer in a negligent manner and the unfortunate accident occurred due to negligent driving of the car by Dharamveer. Police registered a case under Sections 279 and 304A of the Indian Penal Code and conducted investigation. The car was seized by the Police and if was mechanically inspected by a Police Officer who found that the car was damaged at several places and the rear of the car was also damaged. During investigation the first informant Yudhishtar submitted an application in writing duly signed by him in which he had stated that a truck whose number could not be known had hit the maruti car from the rear side and because of that, unfortunate accident occurred. Almost all the witnesses who were examined under Section 161 of the Criminal Procedure Code gave a story to the effect that a truck had hit the maruti car from behind and, therefore, maruti car could not be control led and turned upside down. As a consequence Police submitted a final report stating therein that truck which had hit maruti car from behind could not be identified and it was not feasible to keep the investigation pending. Obviously the Police Officer was of the opinion that Dharamveer who was at the time of accident driving the car was not rash or negligent in driving the car.
4. The learned Chief Judicial Magistrate before whom the report under Section 173(2) of the Criminal Procedure Code was submitted at the Police Station Hanumangarh after perusing the report as well as the documents produce before him came to the conclusion that there was sufficient ground to proceed against Dharamveer the driver of the maruti car for having committed offences punishable under Sections 279, 337 and 304A of the Indian Penal Code. A revision petition was filed before the District and Sessions Judge, Hanumangarh against the order passed by the learned Chief Judicial Magistrate, Hanumangarh. The learned District and Sessions Judge, Hanumangarh accepted the revision petition vide order dated Ist July. 1996 and set aside the order dated 23rd January, 1996 passed by the Chief Judicial Magistrate, Hanumangarh.
5. The petitioner Ishari Singh has come before this Court with the submission (hat the order passed by the learned District and Sessions Judge. Hanumangarh is not proper and it deserves to be set aside and the order of the learned Chief Judicial Magistrate, Hanumangarh should be restored because maruti car was actually being driven by Dharamveer in a rash and negligent manner. The learned Public Prosecutor has supported the order passed by the learned District and Sessions Judge, Hanumangarh. A similar stand has been taken by the learned counsel for the non-petitioner No. 2 on the ground that the order passed by the learned District and Sessions Judge, Hanumangarh is just and proper on the ground that there was no sufficient material to proceed against the non--petitioner No. 2.
6. It has been held by this Court that right to live in peace is an integral part of the right of personal liberty guaranteed by Article 21 of the Constitution and the right to live in peace includes the right not to be proceeded against in any criminal proceeding unless there be sufficient grounds required by law for implicating any person as accused or defendant in any proceeding. Viewed in that light Section 204 of the Criminal Procedure Code assumes importance because Section 204 of the Criminal Procedure Code is the first section which is invoked by the Court for the purpose of proceeding against any person accuser! of an offence. For the purpose of exercising powers given under Section 204 of the Criminal Procedure Code three things are necessary (a) that an offence has been committed (b) that cognizance of the offence can be legally taken by the Court and (c) that there are sufficient grounds to proceed against any person for the alleged offence of which cognizance has been taken. All the three conditions must be satisfied. So far as the meaning of the words sufficient ground to proceed" as used in Section 204 of the Criminal Procedure Code, is concerned, it is well established by several rulings of she Hon'ble Apex Court and this Court that a prima facie case showing that the accused had committed the alleged offence must be proved. The object of criminal prosecution is to bring the offender to the Court of law for punishment, the prosecution should be allowed only when there is a bona fide intention to prosecute a person with the above object and the person who wants to prosecute bona fide believes that he can prove the charge in the Court of law against the offender. Both these things are essential for a criminal prosecution in Court. There may be cases in which a person intending to prosecute the accused has no evidence at all for one reason or the other. In such cases if prosecution is allowed without there being sufficient evidence to bring guilt home to the accused, the object of prosecution would not be served and the time of the Court would also not be properly utilised. Expression "sufficient ground" as used in Section 204 of the Criminal Procedure Code in view of the above mentioned object or prosecution indicates the presence of two things the first is bona fide intention to get the offender punished and the second is such evidence as is sufficient to prima facie prove the offence against the alleged offender. Sufficiency of evidence for proving the ingredients of an offence cannot be ignored when the expression "sufficient ground to proceed" as used in Section 204 of the Criminal Procedure Code is interpreted. The reason being that no-one can be punished unless the offence is proved and nothing can be said to be proved unless the Court after considering all the materials placed before it: comes to the conclusion that there are grounds; to believe in the existence of alleged facts or that in a given set of circumstances a prudent man ought to act on the supposition that such fact exists, within the meaning of Section 3 of the Evidence Act. Belief in the existence of a fact as required by Section 3 of the Evidence Act is what signifies the meaning of the expression "proved" and such belief required to be founded on matters placed before the Court. It is quite obvious that only those matters can be placed before the Court which are relevant and admissible as required by Section 136 and the proviso given below Section 165 of the Evidence Act, This means that the belief in the existence of a fact which is sought to be proved before a Court must be founded on relevant and admissible evidence whether it is documentary, oral or circumstantial. Unless there be such evidence there would be no sufficient material before the Court on which a belief as required by Section 3 of the Evidence Act can be founded. Sufficiency of evidence which is relevant, admissible and reliable is, therefore, an important factor to be kept in mind. Applying the rule that the best evidence must be produced, if the party on whom the burden to prove lies is possessed of relevant, admissible and duly proved documentary evidence. Such documentary evidence may be sufficient to prove the fact and it is considered to be the best evidence if it is available. Next in order is the oral evidence of the witnesses who have personal knowledge about the fact to be proved and they arc required to testily in accordance with Section 60 of the Evidence Act. If their evidence is reliable, whether independently or with the aid of corroborating pieces of evidence, the oral evidence may be acted upon by the Court on the assumption that the person giving testimony is speaking the truth. If oral evidence and documentary evidence both be not available then a party may rely upon circumstantial evidence if it is available but since circumstantial evidence does not give any direct: information about the fact in issue, only inference can be drawn under Section 114 of the Evidence Act and the law is well established that in a criminal prosecution the chain of circumstances must be proved and the circumstantial evidence must be consistent only with the hypothesis of guilt and if any link in the circumstantial evidence is missing or if the circumstantial evidence is also compatible with hypothesis of innocence then the benefit of doubt is given to the accused. It is in the case of circumstantial evidence that more mistakes are likely to occur. Sometimes persons jump to conclusions from a single circumstance by ignoring the fact that the missing links are vital for arriving at the correct conclusion. Circumstantial evidence must, therefore, be scrutinised carefully to consider whether it is sufficient to make out prima facie case for proceeding against a person under Section 204 of the Criminal Procedure Code,
7. In the instant case the first informant Yudhishtar has not supported the First Information Report and his version as recorded under Section 161 of the Criminal Procedure Code is to the effect that a truck hit the maruti car from behind, which means that the car lost balance not because there was any negligence on the part of the driver Dharamveer but because a truck hit it from behind. Other witnesses too have given a similar version. The learned counsel for the petitioner submits that the investigation conducted by the Police is unfair and these statements should carry no weight. If this argument is accepted it would amount to holding that all the statements recorded by the Police are untrustworthy of being taken into consideration and then there would remain no other evidence which can justify the conclusion that a prima facie case of negligence on the part of Dharamveer is made out. The burden to prove can be discharged not by creating voids by showing that the evidence which have been produced has been tampered with and is, therefore, unreliable but by actually filling the void so created, by legal and admissible evidence. Since the first informant and his witness have not supported the story of negligence on the part of the driver of the car, there remains no evidence at all to prove that the driver of car had acted in a negligent manner. In other words there is no documentary evidence or oral evidence to support the charge of negligent driving. So far as circumstantial evidence is concerned the only circumstance is that the car while it was being driven by Dharamveer non-petitioner No. 2 turned upside down after leaving the road.
8. Whether this circumstance is sufficient to prove a prima facie case for the purpose of Section 204 of the Criminal Procedure Code is the crucial question. No such rule of presumption has been brought to my notice which may justify the drawing of the inference that whenever an accident of this nature occurs, presumption of negligence on the part of the driver should be drawn. Ordinarily such accidents do not occur. In the instant case the mere facts that the car, while it was going on the road all of the sudden left the road and turned upside down, does not justify the conclusion that it was negligently driven. There must have been some other reason for this accident. According to prosecution witnesses, a truck hit the rear of the car and then it lost balance. If the petitioner wants to collect any evidence which he thinks may be available but has not been collected by the Police, there is nothing in law to prevent him from enquiring at his own level. The question of directing a further investigation under Section 156(3) of the Criminal Procedure Code does not arise because the Police have already recorded the statements of the persons acquainted with the circumstance of the case, under Section 161 of the Criminal Procedure Code. The petitioner has not placed anything on record to show that he is in possession of any evidence by which he can prove a prima facie case against the non-petitioner No. 2. In these circumstances the conclusion drawn by the learned District and Sessions Judge, Hanumangarh, neither appears to be illegal nor it appears to be unjust. The order of the learned Chief Judicial Magistrate does not indicate that evidence on the basis of which he came to the conclusion that a prima facie case for proceeding against the non-petitioner No. 2 was made out. The First Information Report which has been referred to by the learned Chief Judicial Magistrate in his order has not been supported by first informant. In his application submitted to the Station House Officer, during investigation and in his statement recorded under Section 161 of the Criminal Procedure Code the maker of the First Information Report does not support the version given in the First Information Report. It is difficult to say that the contents of the First Information Report are correct because the contents of the First Information Report cannot be presumed to be correct. They have to be proved by the maker during his statement in Court. The First Information Report is not a substantive piece of evidence. It is at best indicative of the conduct of the maker of the First Information Report with a view to start an investigation by the Police in the matter. At this stage all that can be done is to point out the disparity between the version given in the First information Report and the version given in the statement recorded under Section 161 of the Criminal Procedure Code. The later is relevant for proceeding under Section 204 of the Criminal Procedure Code because it supersedes the former and is likely to be adhered to if the deponent is examined in the Court. I would say no more in (he matter because in cases like this the parties may adduce evidence in civil proceedings where the versions given by the witnesses will have to be tested in accordance with law. Suffice it to say that there does not appear to be sufficient ground to proceed against non-petitioner No. 2 within the meaning of Section 204 of the Criminal Procedure Code. The learned District and Sessions Judge, Hanumangarh was, therefore, justified in accepting revision and setting aside the order passed by the learned Chief Judicial Magistrate.
9. For reasons mentioned above this petition deserves to be dismissed and is hereby dismissed.