Madhya Pradesh High Court
Bharat Singh Yadav vs The State Of Madhya Pradesh on 13 February, 2019
The High Court of Madhya Pradesh: Jabalpur
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Single Bench: Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Cr.R. No. 258-2019
Bharat Singh Yadav
Vs.
State of Madhya Pradesh
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Shri Kamlesh Singh Rajput, learned counsel for the applicant.
Shri Santosh Yadav, Panel Lawyer for the
respondent/State.
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ORDER
(Passed on 13.02.2019) This Criminal Revision filed by the applicant under Section 397/01 of the Cr.P.C. being aggrieved by the judgment and order dated 10.01.2019 passed in Criminal Appeal No.301/2014 by the Additional Session Judge, Sehora, District Jabalpur, whereby learned appellate Court affirmed the judgment passed by the JMFC in Criminal Case No.1545/2012 and convicted the applicant for the offence punishable under Section 304-A of IPC and convert the sentence passed by the JMFC for that offence from one year six months R.I. into one year R.I. and maintained the fine amount. 2
2. In short, the prosecution story is that on the date of incident i.e. 10.09.2012, the appellant was driven Auto Bearing No. MP20R3267 rashly and negligently. The deceased Dharmendra Singh and witness Chatrapal Singh (PW-1), Jaypal Singh Thakur and Deepu Patel (PW-3) were sitting inside the Auto. The applicant driving vehicle rashly and negligently, on account of that Dharmendra Singh fell down from the Auto, sustained injury and, thereafter he succumbed to injuries. On the basis of FIR in Crime No.938/2012 offence under Section 304-A has been registered against the applicant and after investigation charge-sheet has been filed before JMFC. The trial Court framed charges against applicant. The applicant abjured the guilt. Prosecution recorded the statement of witnesses. In the examination of the accused, the applicant denied all the incriminating circumstances comes against him and pleaded that he has falsely been implicated, however, did not produce any evidence in his favour. Learned JMFC after hearing both the parties, delivered a judgment on 30.09.2014, thereby convicted the applicant for the offence punishable under Section 304-A of IPC and sentenced him to undergo one year six months R.I. alongwith fine of Rs. 500/- in default to undergo further 10 days R.I. Additional.
3. Being aggrieved by that judgment of conviction and order of sentence, the applicant preferred an appeal before the Additional Session Judge, Sehora, Jabalpur, Register as Cr.A. No.301/2014. The Appellate Court after hearing both the parties delivered the judgment on 30.09.2014 and affirmed the conviction under Section 304-A of IPC, reducing the imprisonment from one year six months to one year and remaining sentence not interfered with.
4. Being aggrieved by that order and judgment dated 30.09.2014, the applicant has preferred this revision on the ground that learned trial Court as well as Appellate Court have not appreciated the evidence properly. There was no witness to support the prosecution case. In spite of that the applicant has been convicted for the offence punishable under section 304-A of IPC causing gross in justice to the applicant. The man who fell down was in intoxicated state and due to imbalance, he automatically fell down, there was no fault of the applicant, therefore, prays for setting aside the conviction and sentenced passed by both the Courts below.
5. Learned Government Advocate has submitted that the learned trial Court as well as the Appellate Court have appreciated the evidence in proper perspective. There was strong evidence against the applicant to implicate in this offence. Eye witnesses categorically stated that at the time of accident, the applicant was driven vehicle, therefore, prays for dismissal of this revision.
6. Having heard learned counsel for the parties and perused the record of both the Courts below.
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7. As per statement of Omkar Singh, A.S.I.. (PW-4), Jaypal Singh lodged a report in the Police Station Sehora, Chowki Gosalpur, alleging therein that the Auto bearing No. M.P.20 R 627 was driven by the applicant. Accident happened between the village Sehora and Pali in which Dharmendra Singh sustained grievous injuries. Police registered Crime No. 348/2012 and it was found that Dharmendra Singh succumbed to that injuries, registered a case under Section 304- A of IPC, prepared a spot map at the instance of Jaipal Singh. Body of the Jaipal Singh sent for the postmortem. Dr. Deepa Shiv Das (PW-5) performed the autopsy and opined that Dharmendra Singh died, due to the haemorrhage and shock caused by the fatal injuries. This clearly goes to show that the Dharmendra Singh was died due to fatal injury caused in accident.
8. Eye witness Chatpal Singh (PW-1) clearly stated that Auto was driven by the applicant and he was driving Auto in high speed but this witness also stated in his examination-in-chief that Auto was driven rightly, however, on the breaker Auto jumped and Dharmendra Singh fell down from the Auto and sustained injuries. He was shifted to Gosalpur Hospital where he was declared brought dead. He stated the number of Auto as MP20R 3267. The said witness was declared hostile by the prosecution and on asking question, he admitted that the applicant was driven Auto negligently on that account accident happened but in cross-examination stated no doubt Auto was in high speed but it has rightly driven and in para-4 admitted that there was no negligence on the part of the applicant. In his statement, he also admitted that on the place of the accident there was so many turns on the road, when Dharmendra fell down from the Auto then this witness came to know that Dharmendra had fallen down.
9. Another witness Jaipal Singh Thakur (PW-2) stated that he was siting in the Auto, Auto was running in high speed and as applicant turn the Auto suddenly and Dharmendra Singh fell down and the wheel of the Auto run over the body of the Dharmendra Singh. But in para-2 he specifically stated that he could not say that to whom mistake this accident happened. This witness in cross-examination in para-5 admitted that during accident Auto did not turn turtle, only Dharmendra Singh fell down from this Auto and in para-6 he admitted that they all were gossiping and Dharmendra slip from the Auto and fell down. He also admitted that when Dharmendra fell down, Auto stopped immediately after running only 10 feets. In para 7 he admitted that it is right if Dharmendra caught hold Auto this accident would not happened.
10. Deepu Patel (PW-3) stated in his examination-in-Chief that when Dharmendra existed his mouth for spitting, in the same time Auto took a turn and he fell down. He presumed the speed of Auto 30- 40 Km and he also stated that when Dharmendra fell down, after that Auto stopped immediately and took Dharmendra on the same Auto to 6 hospital. He stated that Auto was driven by the applicant but it is in average speed.
10. After considering the statement of all three witnesses, it is found that the deceased Dharmendra was sit along with Chatrapal Singh (PW-1), Jaipal Singh Thakur (PW-2) and Deepu Patel (PW-3). The road on which Auto was runing, was having so many turns. Dharmendra was sitting and gossiping with other witnesses when he existed his mouth to spit, at the same time Auto took turn and he fell down. No doubt, the driver of the Auto could not guess this accident, Auto was driven in high speed but not negligently as state by the witness in-chief as well as in cross-examination. Until and unless there is a negligence driving is proved, the main ingriedients of the offence under Section 304-A of IPC could not be proved
11. In totality of the consideration of the witnesses, this Court is of the view that both the Courts on the basis of the statement of witnesses that the applicant was driven the Auto and during driving the accident happened, convicted the applicant for the offence under Section 304-A of IPC but negligence and rashness of the driving of the applicant has not been proved on the basis of the statement. In that way, this Court finds that the prosecution failed to prove that at the time of the accident, the applicant was driven the Auto rashly and negligently on account of that accident happened. In the case of Mohammad Aynuddin @ Miyam Vs. State of Andra Pradesh (2000 AIR (SC), 2511), Hon'ble Apex Court has held that when the victim fell down on account of his own negligence, driver of the vehicle could not be held negligence of that accident. In that case, the Apex Court specifically mentioned that "Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus". In the case in hand, the applicant was driven the Auto the deceased was sitting with the other witnesses and gossiping and he try to spit out side the Auto, the Auto took turn, he fell down, he was not aware of that fact. In this way, the negligence of the applicant could not be presumed and prosecution failed to prove that the applicant was negligent for rashly driving the Auto. Resultantly, accident not happened due to negligent and rashly driving of the applicant. The main allegation of the offence has not been proved by the prosecution, both the Courts below erred in convicting the applicant for the offence punishable under Section 304-A of IPC.
12. Accordingly, this revision succeeds and the same is allowed. The judgment of conviction and sentenced passed by the Courts below is hereby set aside. Applicant is acquitted for the charge. If he is in jail, not required any criminal case, he be released forthwith.
(Vishnu Pratap Singh Chauhan) JUDGE Tabish Digitally signed by MOHAMMAD TABISH KHAN Date: 2019.02.14 12:04:56 +05'30'