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Madhya Pradesh High Court

The State Of M.P. vs Kedar on 19 June, 2009

        HIGH COURT OF MADHYA PRADESH : JABALPUR

                                                     Cr. Appeal No.349/1994.
       The State of Madhya Pradesh,
       Through P.S. Jeron,
       District Tikamgarh.
                                                            ............ Appellant
                                        vs.

       Kedar, aged about 35 years
       S/o Jamuna Prasad Pastor,
       R/o Jaron, Distt. Tikamgarh
                                                             ............ Respondent
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        Mr. Ramesh Shukla, Dy. G.A. for the appellant.
     None for the respondent.
___________________________________________________

                                 JUDGMENT

(19.06.2009) The State is in appeal against the acquittal of the respondent in respect of the offence punishable under Section 304-A of the IPC. The corresponding judgment passed on 11.10.1993 by Shri B.L. Verma, JMFC, Orchha, Distt. Tikamgarh in Criminal Case No.33/91 is the subject matter of challenge.

2. The prosecution story, in short, is that at about 7 a.m. on 16.1.1991, Keshar Bai, a woman aged about 55 years, was hit by a Jeep bearing registration No.UP-D-5785 at the time when after attending second call of nature near Jeron-Prithvipur road in village Tatarpura, she was picking up her lota (a small vessel). The vehicle was driven by the respondent so rashly and negligently that even after the accident it descended into a ditch and stopped only after dashing against a Ber (Jujube) tree. Sustaining a severe impact, Keshar fell down at the spot. She was immediately taken to P.H.C where she was declared dead. Cause of her death was ascertained by the autopsy surgeon Dr. S.D. Gupta (PW-11) as coma due to head injury.

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3. The respondent abjured the guilt. According to him, Keshar was blind and upon hearing sound of the Jeep, she got perplexed and fell down and in the process of dodging her, he swerved the Jeep to extreme right but due to failure of brakes it collided against the tree.

4. Sakhi (PW2), named as the eyewitness in the F.I.R. (Ex./P-1), lodged by her uncle Bhagirath (PW5) denied the fact as contained in the F.I.R that the accident had occurred when Keshar was lifting up the lota. As per her statement, Keshar was knocked down by the Jeep while returning home. This assertion was corroborated by Kamla (PW3), Bhagona (PW4) and Ramcharan (PW6), respectively nephews and son of the deceased. The first informant viz.

Bhagirath (PW5) also admitted that before being struck by the Jeep, Keshar had already started for home after picking up the lota. Ramdin (PW1) was emphatic in deposing that Keshar was hit by the vehicle while answering the call of nature.

5. Thus, on one hand, evidence of related witnesses suffered from serious infirmities as to the moment of the vehicular accident took place and on the other, Swami Prasad (PW7) who was travelling in the Jeep supported the plea of defence that the respondent had tried to save the accident. According to him, Keshar herself had dashed against the Jeep while suddenly running towards it whereas in making attempt to save her, the respondent had steered the vehicle towards right side of the road. Although, Kamla (PW3), son of the deceased, came forward with a statement that Keshar was dragged with the Jeep for a distance of nearly 5 feet yet, the medical expert Dr. S.D. Gupta (PW11) categorically stated that only one injury in the form of a swelling with right underneath fracture of occipital and temporal bone was noticed on her body.

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6. This apart, possibility of occurrence of accident on account of mechanical break down was clearly established from the evidence of a mechanic namely Rampal (PW10). Enumerating the defects in the Jeep, he pointed out that brake cylinder had burst due to apply of emergency brakes. The defence that was put to all the so-called eyewitnesses to the incident was apparently not afterthought. Assuming for the argument's sake that the vehicle did not have any mechanical failure, the probability of error of judgment was clearly established from the evidence on record. It is well settled that the principle of res ipsa loquitur has a limited application in trial on a charge of criminal negligence (see. Syad Akbar v. State of Karnataka AIR 1979 SC 1848).

7. In this way, even if the prosecution evidence is re-appreciated, it would not be possible to come to a different conclusion. Moreover, the order of acquittal should not be disturbed unless the conclusions drawn on the evidence on record, are found to be grossly unreasonable or manifestly perverse or palpably unsustainable.

8. The appeal, therefore, stands dismissed.

Appeal dismissed.

(R.C. Mishra) JUDGE 19.06.2009