Madhya Pradesh High Court
State Of M.P. vs Raju Khanna on 6 April, 2017
1 Cr.A.No.913.2010.
HIGH COURT OF JUDICATURE AT JABALPUR
BENCH GWALIOR
S.B : Hon'ble Mr. Justice G.S.Ahluwalia
Cr.Appeal No.913.2010.
State of M.P.
Vs.
Raju Khanna.
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Shri G.S.Chauha, PP for the appellant/State.
None for the respondent though served.
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JUDGMENT
(Passed on 6th April, 2017) This criminal appeal has been filed under Section 378 of Cr.P.C by the State against the judgment dated 20.3.2010 passed by VIth Additional Sessions Judge (Fast Track Court), Bhind in Sessions Trial No.140 of 2007 by which, the appellant has been acquitted of the charge under Section 304-A of IPC.
Necessary facts for the disposal of the present appeal, in short are that on 22.5.2007 an FIR was lodged by Premsingh Kushwah alleging that he was travelling in a bus which was being driven by the respondent and because of rash and negligent driving of the respondent, the bus was turned up side down and the respondent ran away from the spot. Three passengers had expired on the spot itself and others have sustained injuries. The police sent the vehicle for technical examination, prepared the spot map, send the dead bodies of the deceased persons for the Postmortem and injured persons were sent for medical treatment. The respondent was arrested and after recording statements of the witnesses and completing investigation, the police filed charge-sheet against the respondent for an offence under Section 304 of IPC.
2 Cr.A.No.913.2010.The trial court vide order dated 6.9.2007 framed charge under Section 304 Part 2 (Three counts) of IPC. The respondent abjured his guilt and pleaded not guilty.
The prosecution examined Rambaran (PW1), Premsingh (PW2), Dr.Ravindra Chaudhary (PW3), Dinesh Singh (PW4), Premadevi (PW5), Matadin (PW6), Jaswant (PW7) Dr. J.S.Yadav (Pw8), Ramdulari (PW9) and Satnam Singh (PW10). The respondent did not examine any witness in his defence but took a specific stand that as steering wheel and brake of the vehicle had failed and therefore, the bus had turned up side down.
Dr.Ravindra Chaudhary (PW3) had conducted postmortem of dead bodies of deceased Ajay S/o Kailash, Rinku S/o Shripal Jatav and Awadhesh S/o Rajendra Singh Gurjar. Various injuries were found on the bodies of the deceased. The Postmortem reports of Ajay is Ex.P/7, Postmortem Report of Rinku is Ex.P/10 and Postmortem Report of Awadhesh is Ex.P/12.
Doctor J.S.Yadav (Pw8) has medically examined Sadhna W/o Anand Swaroop Shrivastava, Matadin S/o Asharam Dhobi, Dinesh Singh S/o Diwan Singh Rajput, Prema Devi W/o Yogendra Singh Rajput, Ramdulari W/o Rajendra Kushwah and Yashwant S/o Chironji. Several injuries were found on their bodies. MLC Reports of these injured are Ex.P/14 to Ex.P/19 respectively.
Thus, it is clear that three persons had lost their lives and several passengers had suffered injuries in the accident which took place on 22.5.2007.
Now, the only question for determination is that whether the respondent had committed the accident by 3 Cr.A.No.913.2010. driving the vehicle rashly and negligently and whether the respondent was under the influence of alcohol at the time of accident or not?.
So far as the allegation of consumption of alcohol is concerned, the trial court has given the finding that the police did not conduct medical examination of the respondent to ensure that whether, he was driving the vehicle in the influence of alcohol or not. However, it would be appropriate to mention here that the accident took place on 22.5.2007 whereas the respondent was arrested on 6.6.2007 and therefore, no adverse inference can be drawn against the prosecution if they did not get the medical examination of the respondent done to ensure that whether he was under the influence of alcohol or not.
Ramvaran (PW1) has stated that the driver of the bus was driving the bus at a high speed but no objection was raised either by this witness or any passenger and subsequently all of a sudden, the bus turned up side down. As this witness did not support the prosecution case in toto, therefore, he was declared hostile but in cross-examination, this witness stuck to his stand that he has never objected to the driver to drive the vehicle slowly.
Premsingh (PW2) has stated that while bus was in between Barohi and Pidora, steering wheel got jammed and the driver was plying the bus at a slow speed. Some passengers had sustained injuries. Since this witness also not supported the prosecution case in toto, therefore, he was declared hostile. In cross- examination also, he denied that the driver of the bus was driving the bus rashly and negligently. He further stated that he did not lodge Dehati Nalishi and Dehati 4 Cr.A.No.913.2010. Naslishi did not contain his signatures. He further stated that merg intimation Ex.P/4 did not contain his signatures. He further denied the signatures on second intimation filed Ex.P/5. This witness further denied another merg intimation report Ex.P/6.
Dinesh Singh (PW4) has stated that the bus was being driven at a high speed, therefore, it turned up side down. Most probably, the driver was under the influence of liquor. He further stated that he had advised the driver to drive the bus slowly. He identified the respondent in the court as a person who was driving the vehicle. This witness further stated that he had sustained injuries in the accident and three persons had died. In cross-examination, he admitted that the condition of the Bhind Gwalior Road is very bad and there is heavy traffic on the said road. He further admitted that no Test Identification Parade of the driver was got conducted by the police and he met with the respondent for the first time in the court itself. On earlier occasion i.e. 24.2.2009, he has come to the court and at at that time also, the respondent had met him. However, this witness could not say about the exact speed of the bus.
Prema Devi (PW5) has stated that she had sustained injuries because of the accident. The bus was being driven at a high speed. However, she stated that she did not object the driver about speed of the bus. In cross-examination, she admitted that she did not know the speed at which, the bus was being driven.
Matadeen (PW6) has also stated that the bus being driven at a high speed and near Barohi, the bus turned up side down. In the said accident, three persons had died and this witness has also sustained 5 Cr.A.No.913.2010. injuries.
Jaswant (PW7) has stated that because the steering of the vehicle got jammed, therefore, the bus turned up side down. This witness did not support the prosecution and was declared hostile and was cross- examined. However, nothing could be elicited from his cross-examination which may support the prosecution case.
Ramdulari (Pw9) has also stated that she was travelling in the bus and on the way, all of a sudden, the bus turned up side down, as a result of which, she and her husband sustained injuries. She was declared hostile. However, nothing could be elicited from her cross-examination which may support the prosecution case.
Satnam Singh (PW10) had investigated the matter. In cross-examination, he admitted that the vehicle was got mechanically examined and during investigation, when he received mechanical report of the bus, then, he came to know that the steering wheel as well as brake of the vehicle were not in order. The mechanical report is Ex.P/1.
From the evidence, which has been led by the prosecution, it is clear that there is no evidence to the effect that the driver of the vehicle was driving the vehicle rashly or negligently. Mere high speed of the vehicle is not sufficient to hold that the vehicle was being driven rashly or negligently. Even mechanical examination report shows that the steering wheel and the brake of the vehicle were defective. Thus, the defence which has been taken by the respondent that because of failure of steering wheel as well as brake of the bus, the accident took place appears to be 6 Cr.A.No.913.2010. probable. Although in an unfortunate incident, three persons lost their lives and several persons sustained injuries but in absence of any specific evidence to the effect that the respondent was driving the vehicle rashly and negligently, this court is of the opinion that the prosecution has prima facie failed to prove it's case.
Premsingh (PW4) has stated that "most probably, the respondent was under the influence of the liquor". This statement of witness cannot be said to be substantive piece of evidence to show that the respondent was driving the vehicle under the influence of liquor. This witness has merely expressed his suspicion that most probably, the respondent was under the influence of liquor. He has not specifically stated that the respondent was driving the vehicle under the influence of liquor. Mere apprehension or suspicion expressed by a witness cannot be said to be a substantive piece of evidence and is not admissible as the witness cannot be placed in the category of expert within the meaning of Section 45 of the Evidence Act.
Considering the totality of the situation, this Court is of the view that the prosecution has miserably failed to establish the guilt of the respondent. Even otherwise, from the prosecution evidence which has come on record, the trial court came to the conclusion that the prosecution has failed to prove it's case against the respondent and has accordingly acquitted the respondent for offence under Section 304-A of IPC (three counts). It is a well established principle of law that where two views are possible and the court below has adopted the view favouring the accused, then, the 7 Cr.A.No.913.2010. findings cannot be interfered with unless and until the finding recorded by the trial court are found to be purverse or contrary to the record. The counsel for the appellant could not point out any perversity in the judgment passed by the appellate court.
Accordingly, the judgment passed by the trial court is affirmed. This appeal fails and is hereby dismissed.
(G.S.Ahluwalia) .
Rks Judge