Rajasthan High Court - Jaipur
Pappu @ Shehjad vs State on 28 February, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:8343] (1 of 12) [CRLR-382/2005]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 382/2005
Pappu @ Shehjad son of Najir Mohd., R/o Pancholas, Police
Station Ravanjana Doongar, District Sawai Madhopur. At present
in District Jail, Sawai Madhopur.
----Petitioner
Versus
State of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. Biri Singh Sinsinwar, Sr. Adv.
assisted by Mr. Hemand Singh
Mr. Arslaan Khan
For Respondent(s) : Mr. Imran Khan- PP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
28/02/2024
1. The present criminal revision petition is preferred against the judgment dated 05.04.2005 passed by learned Additional District and Sessions Judge, Sawai Madhopur in Criminal Appeal No.36/2003 whereby, the learned Appellate Court dismissed the appeal and affirmed the judgment of conviction and order of sentence dated 13.06.2003 passed by learned Additional Judicial Magistrate, Sawai Madhopur in Regular Criminal Case No.67/2000 whereby, the accused-petitioner was convicted and sentenced as under:-
Offence under Imprisonment Fine Sentence in Section default of fine 279 of IPC 03 Months' S.I. -- --
337 of IPC 06 Months' S.I. -- --
338 of IPC 01 Year S.I. -- --
304A of IPC 01 Year S.I. -- -- 379 of IPC 01 Year S.I. -- -- (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (2 of 12) [CRLR-382/2005]
2. Learned counsel for the accused-petitioner submits that findings of the learned Courts below are against the facts and material on record. The Courts below have erred in law in placing reliance on the statement of PW-6 Mohan Lal. The accused-
petitioner has come with a specific defence that Mohan Lal was driving the vehicle at the relevant time and he did not possess the licence. Therefore, Mohan Lal in connivance with the owner of the motorcycle, levelled allegations against the accused-petitioner of driving the vehicle at the relevant time. Mohan Lal is only witness and there is no other witness of the incident to corroborate the statement of Mohan Lal. PW-6 Mohan Lal in the cross-examination has stated that he did not know, how the accident occurred, therefore, there is no evidence on record to prove that at the relevant time, the accused-petitioner was driving the vehicle rashly and negligently.
3. In defence of the evidence to this effect, conviction of accused-petitioner cannot be sustained for offence under Section 304A of the IPC. He further submits that accused-petitioner was also convicted under Section 379 of the IPC and PW-9 Gajendra has specifically stated that the said motorcycle was handed over to Nijam, brother of the accused-petitioner for repairing. Therefore, ingredients under Section 379 of the IPC are not meted out.
4. Learned counsel for the accused-petitioner further submits that as per the site plan in the instant case, Latur (deceased) himself was negligent and he collided with the motorcycle, as a result, accused-petitioner, PW-6 Mohan Lal and Latur received the injuries. The injury reports of the three persons go a long way to show that motorcycle was not collided with the cycle of Latur and (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (3 of 12) [CRLR-382/2005] it was Latur who collided with the motorcycle. The findings of the learned Courts below are based on conjectures and surmises and, therefore, liable to be set aside.
5. Learned counsel for the accused-petitioner in alternative prays that sentence awarded to the accused-petitioner may be substituted with the period already undergone by him and he may be released. He places reliance upon the following judgments:-
(i) Paul George Vs. State of NCT of Delhi (2008) 4 Supreme Court Cases 185
(ii) S.B. Criminal Revision Petition No.1332/2003, Ramchandra Vs. State of Rajasthan
(iii) S.B. Criminal Revision Petition Nos.525 and 526/2008, Mehboob Khan Vs. State
(iv) S.B. Criminal Revision Petition No.109/2004, Taranjeet Singh Vs. State of Rajasthan.
6. Per contra, learned Public Prosecutor supports the judgment passed by the Courts below and opposes reduction in sentence. He places reliance upon the judgment rendered by the Hon'ble Supreme Court in State of Punjab Vs. Dil Bahadur in Criminal Appeal No.844 of 2023 @ SLP (Crl) No.2984 of 2018.
7. Before dealing with the revision petition, it is desirable to point out the factual matrix of the case, which are as under:-
7.1. That on 28.02.2000, PW-1 Jagdish lodged a written report (Exhibit P-1) at Police Station Ravanjana Doongar alleging that at about 10:00 am in the morning, after selling vegetables, Latur son of Heeralal Kir was coming from Khijuri. Pappu son of Najir was on the motorcycle and Mohan Lal was sitting on the rear seat. The motorcycle collided with the cycle, resulting into death of Latur, Pappu and Mohan Lal also sustained injuries. 7.2. On receipt of the above report, the First Information Report No.27/2000 was registered at Police Station Ravanjana Doongar for (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (4 of 12) [CRLR-382/2005] the offences under Sections 279, 337, 338, 304A and 379 of IPC and under Sections 3/181 of Motor Vehicles Act. 7.3. After investigation, police filed challan against the accused-
petitioner for the offences under Sections 279, 337, 338, 304A and 379 of IPC and under Section 3/181 of Motor Vehicles Act and charges were framed, the accused-petitioner denied the charge and after commencement of trial, prosecution examined 16 witnesses.
7.4. The statement of accused-petitioner under Section 313 of the Cr.P.C. was recorded. After hearing both the parties, accused- petitioner was acquitted for the offence under Sections 3/181 of the Motor Vehicles Act and convicted under Sections 279, 337, 338, 304A and 379 of IPC.
8. It is a settled law that the scope of interference with the concurrent findings of facts in criminal revision is very limited. If, the findings of the Courts below are totally perverse, then only, the revisional Court can interfere with the findings and review the evidence again.
9. In the present matter, learned counsel for the accused- petitioner submits that both the Courts below erred in convicting the accused-petitioner solely on the testimony of PW-6 Mohan Lal whereas, Mohan Lal in his cross-examination has specifically stated that he could not see the accident.
10. There is no gain-saying to the fact that the questioned motorcycle met with an accident and hit the cyclist Latur, resulting into his death and accused-petitioner and PW-6 Mohan Lal also sustained simple and grievous injuries.
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11. Learned counsel for the accused-petitioner vehemently submits that at the time of accident, accused-petitioner was not driving the vehicle and it was Mohan Lal who committed the accident and Police in connivance with Mohan Lal implicated the present accused-petitioner.
12. Utmost question before the Court is that whether the accused-petitioner was driving the questioned vehicle and due to his rash and negligent driving, deceased Latur died at the spot and PW-6 Mohan Lal sustained simple and grievous injuries.
13. As already stated, the occurrence of accident itself is not in dispute and it is also undisputed that due to an accident, Latur lost his life and Mohan Lal also suffered simple and grievous injuries.
14. To prove the facts of the present case, prosecution relies upon the following witnesses:-
(i) PW-1 Jagdish (ii) PW-2 Arjun (iii) PW-6 Mohan Lal (iv) PW-7 Suraj (v) PW-8 Rameshwar Prasad (vi) PW-9 Gajendra Kumar (vii) PW-10 Sher Singh (viii) PW-12 Moolchand (ix) PW-14 Rajeshwar (x) PW-15 Murari Lal (xi) PW-16 Ram Dayal (Investigating Officer)
15. The accused-petitioner has come up with a specific defence that at the time of occurrence, PW-6 Mohan Lal was driving the vehicle and he has been falsely implicated in the case. (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (6 of 12) [CRLR-382/2005]
16. PW-7 Suraj and PW-12 Moolchand have turned hostile and not supported the prosecution story.
17. PW-12 Moolchand in his cross-examination has denied that he saw the accident. Similarly, PW-7 Suraj has also denied that any accident took place before me.
18. PW-6 Mohan Lal is the injured in the present case who deposes in examination-in-chief that accused-petitioner Pappu took the motorcycle from his brother Nijam's shop and he also accompanied him as a pillion rider. He further states that accused- petitioner after placing small piece of wooden stick in the key whole, started the motorcycle and was driving the motorcycle waiving at high speed and despite cautioning, did not give any heed to his alarm, eventually, resulting in collusion with the cyclist Latur, resulting into his death. After collusion, he also fell down from the motorcycle and sustained injuries on his head and back. In his cross-examination, he denies the fact that he was driving the motorcycle. He also denies the fact that Gajendra Singh agreed to sell his motorcycle to him.
19. PW-1 Jagdish who is complainant in the present matter, deposes that Hans Raj reported to him that Pappu, while driving the motorcycle met with an accident with cycle drove by Latur, resulting in Latur's death. He also states that Pappu and Mohan Lal also suffered injuries. He further states that when he reached at the spot, Arjun and Hari were present and the dead body of Latur was lying beside the questioned motorcycle and cycle. Afterward, he lodged a report (Exhibit P-1) in the concerned Police Station. He also states that after lodging the FIR, Police officials arrived at the spot.
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20. In his relevant cross-examination, PW-1 Jagdish refutes the defence put forth by the defence that motorcycle was being driven by Mohan Lal.
21. From his statement, it appears that witness was not present at the time of occurrence and he reached after the accident. On cross-examining, he has admitted that accident did not take place before him but denies the fact that Mohan Lal was driving the said vehicle.
22. PW-2 Arjun is also not an eye-witness and his evidence is relevant only up to the extent that he heard that Pappu after driving the motorcycle, caused death of Latur, Pappu and Mohan Lal also sustained injuries. In his relevant cross-examination, he also reiterated the fact that Pappu was driving the motorcycle.
23. PW-8 Rameshwar Prasad, who is the owner of the motorcycle, in his statement states that after receiving the notice under Section 133 of the Motor Vehicles Act (Exhibit P-10), he replied at A to B portion, indicating the fact that motorcycle is in possession of his son Gajendra Kumar. In cross-examination, he shows his ignorance regarding accident occurred with the motorcycle.
24. PW-9 Gajendra Kumar is son of PW-8 Rameshwar Prasad and in his statement, he narrates that on 28.02.2000, he parked his motorcycle at Nijam's shop and at about 12:00 am, when he returned from his duty, he did not find the vehicle. After enquiring, he could not trace his motorcycle and thereafter, he instituted a report (Exhibit P-11) in the concerned Police Station. He also states that, later on, he came to know that Pappu while driving motorcycle met with an accident and Mohan Lal was (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (8 of 12) [CRLR-382/2005] accompanying him at rear seat. In his cross-examination, he refutes that he agreed to sell his motorcycle to injured Mohan Lal.
25. PW-10 Sher Singh who is Mechanical Inspector, examined the questioned vehicle and found that left handle of motorcycle was damaged and left indicator was not workable. He also states that in the start switch, a piece of wooden stick was placed. The witness also states that he prepared the Mechanical Report (Exhibit P-10), which bears his signature.
26. PW-13 Chander Shekhar is photographer and he has photographed the pictures at the place of accident. He states that Exhibit P-16 to Exhibit P-19 were collected by him.
27. PW-14 Rajeshwar is witness of site plan and states that site plan (Exhibit P-20) was prepared before him and it bears his signature.
28. Similarly, PW-15 Murari Lal is also witness of site plan (Exhibit P-20) and he also states that site plan (Exhibit P-20) bears his signature.
29. PW-16 Ram Dayal is Investigating Officer and in his examination-in-chief, he states that after lodging the FIR (Exhibit P-2), he went to the place of occurrence and prepared a site plan and also directed to click the photographs. The motorcycle was taken in possession. He also states that during investigation, he recorded the statement of witnesses Jagdish, Arjul Lal, Hari Mohan, Mohan Lal, Soorajmal, Moolchand and Gajendra Kumar. He also states that during investigation, motorcycle was examined by the Mechanical Inspector and report (Exhibit P-10) was prepared by him. After investigation, he has submitted the charge-sheet against the accused-petitioner. In cross-examination, he denies the (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (9 of 12) [CRLR-382/2005] fact that Pappu was falsely implicated and was not driving the motorcycle at the relevant time. The entire above evidence shows that at the time of accident, accused-petitioner was driving the vehicle.
30. From the oral evidence of PW-6 Mohan Lal, it is confirmed that the accused-petitioner was driving the questioned vehicle. The plea of the accused-petitioner that Mohan Lal was driving the motorcycle and he has implicated him, gets undermine by statement of PW-1 Jagdish, PW-2 Arjun and PW-9 Gajendra Singh. All these witnesses in unequivocal terms have repudiated the defence plea that Mohan Lal was driving the vehicle.
31. From the evidence, PW-9, it is obvious that the said motorcycle was in possession of the witness and he parked his vehicle at the shop of accused-petitioner's brother Nijam. In cross- examination, he firmly disavows the defence plea that he agreed to sell the motorcycle to Mohan Lal.
32. The accused-petitioner tried to raise the specific defence by filing a written complaint (Exhibit D-3) after one month of the incident, but was not able to back up it through any cogent evidence.
33. The circumstances just after the incident put forth through witnesses PW-1 Jagdish, PW-2 Arjun and PW-9 Gajrndra Kumar reinforce the prosecution's story that the accused-petitioner was driving the questioned motorcycle. The veracity of PW-6 Mohan Lal, independent witnesses (PW-1 Jagdish) and PW-2 Arjun has remained un-impeached. There is no conceivable testimony to distrust the testimony of PW-6 Mohan Lal.
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34. The learned trial Court and Appellate Court after appreciating the entire evidence available on record have rightly convicted and sentenced the accused-petitioner under Sections 279, 337, 338 and 304A of IPC
35. As far as offence under Section 379 of the IPC is concerned, the prosecution is not able to prove beyond reasonable doubt that accused-petitioner took the vehicle with an dishonest intention. It appears from the evidence that accused-petitioner took the motorcycle only for his thrill. Therefore, the offence under Section 379 of the IPC is not made out against the present accused- petitioner. Hence, the accused-petitioner is acquitted under Section 379 of the IPC.
36. Learned counsel for the accused-petitioner in alternative prays for reduction of sentence of accused-petitioner and places reliance upon the judgment passed by Hon'ble Apex Court in Paul George Vs. State of NCT of Delhi (2008) 4 Supreme Court Cases 185 and judgments passed by this court in S.B. Criminal Revision Petition No.1332/2003, Ramchandra Vs. State of Rajasthan, S.B. Criminal Revision Petition Nos.525 and 526/2008, Mehboob Khan Vs. State and S.B. Criminal Revision Petition No.109/2004, Taranjeet Singh Vs. State of Rajasthan. Learned counsel for the petitioner further submits that accused-petitioner has suffered sentence of 01 month 22 days, therefore, he may be given benefit of sentence already undergone.
37. In the matters of Ramchandra Vs. State of Rajasthan, Mehboob Khan Vs. State and Taranjeet Singh Vs. State of Rajasthan (supra), the Co-ordinate Benches of this Court reduced the sentence of the petitioners as already undergone. (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (11 of 12) [CRLR-382/2005]
38. In case of Paul George Vs. State of NCT of Delhi (supra), the facts of the case were entirely different. The accused was Head Constable at the relevant time while discharging official duty, caused accident, resulting in a death and injuries to other. The Hon'ble Apex Court after taking into consideration that the accused-petitioner has been dismissed from service on account of his conviction under Sections 279 and 304A of the IPC and also taking note that litigation was pending for 20 years, enlarged the accused under Section 4 of Probation of Offenders Act, 1958.
39. Learned Public Prosecutor places reliance on judgment passed by Hon'ble Apex Court in State of Punjab Vs. Dil Bahadur (Supra) rendered in Criminal Appeal No.844/2023 SLP (Criminal) No.2984 of 2018 dated 28.03.2023.
40. The Hon'ble Apex Court in the matter of State of Punjab Vs. Dil Bahadur (Supra) after referring the judgment of State of M.P. Vs. Bablu 2014 (9) SCC 281 held as under:-
"the prime objective of criminal law is the imposition of adequate, just, proportionate punishment which is necessary with the gravity nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is therefore, the solemn duty of the Court to strike a proper balance while awarding the sentence as awarding the lesser sentence encourages any (Downloaded on 28/02/2024 at 08:43:40 PM) [2024:RJ-JP:8343] (12 of 12) [CRLR-382/2005] criminal and as a result of the same, the society suffers."
The Hon'ble Apex Court in the matter of State of Punjab Vs. Dil Bahadur set aside the judgment of Hon'ble Punjab and Haryana High Court whereby, Hon'ble High Court upheld the conviction of respondent under Section 304A of the IPC and reduced the sentence from two years to eight months, subject to prior deposit of Rs.25,000/- towards compensation to be paid to family/legal heirs of the deceased. The Hon'ble Apex Court also held that showing undue sympathy to the accused is unsustainable.
41. Considering the facts of the present case, I am of the view that sentence awarded to accused-petitioner under Sections 279, 337, 338 and 304A of the IPC commensurate with the offence committed and there is no cogent reasons for the Court to reduce the sentence of the accused-petitioner.
42. In view of the above, the criminal revision petition of the accused-petitioner is partly allowed. The order passed by the learned trial court is modified to the extent that accused-petitioner is acquitted from the charges under Section 379 of the IPC and the sentences awarded to the accused-petitioner under Sections 279, 337, 338 and 304A of the IPC are hereby affirmed. The accused- petitioner is on bail. His bail bonds and sureties are forfeited. He is directed to be taken into custody forthwith and sent to the concerned Jail to undergo the remaining period of his sentences.
43. All pending applications are disposed of. Record of the learned Courts below be sent back forthwith.
(PRAVEER BHATNAGAR),J Rahul Joshi (Downloaded on 28/02/2024 at 08:43:40 PM) Powered by TCPDF (www.tcpdf.org)