Rajasthan High Court - Jaipur
State Of Rajasthan vs Nauratan Mal on 5 September, 2001
Equivalent citations: 2002CRILJ348
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order dated 29-10-85 passed by the learned Addl. Chief Judicial Magistrate, Parbatsar in Cr. Case No. 285/1985 by which he acquitted the accused respondent for offence under Sections 279 and 429, I.P.C.
2. This appeal arises in the following circumstances :
(i) On 30-1-83, P.W. 1 Dagla Ram lodged a written report Ex. P/1 with the Police Station Parbatsar stating that Roadways Bus No. RSG 6009 which was being driven by accused respondent at about 12.30 noon which was proceeding towards Parbatsar, struck against the cow of P.W. 1 Dagla Ram resulting into fractures and later on the cow died. It is also stated in the report Ex. P/1 that this incident was witnessed by P.W. 3 Mangi Lal, P.W. 4 Govinda Ram and P.W. 2 Bodu Ram.
3. On this report, police chalked out regular FIR Ex. P/5 and post-mortem of the body of the cow was got conducted by P.W. 11 Bheru Singh and the post-mortem report is Ex. P/8 and P.W. 10 Sayar Singh prepared site plan which is Ex. P/6.
4. After thorough investigation the police filed challan for offence under Sections 279 and 429, I.P.C. against the accused respondent in the Court of Magistrate.
5. The learned trial Magistrate framed charges for the said offences on 18-2-83 against the accused respondent who pleaded not guilty and claimed trial.
6. During trial, as many as 11 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under Section 313, Cr.P.C. and 2 witnesses were examined in defence.
7. After conclusion of the trial, the learned trial Magistrate acquitted the accused respondent through his judgment and order dated 29-10-85 inter alia holding that:
it has not been proved by the prosecution that the bus in question was being driven by the accused respondent rashly or negligently and merely that incident had taken place, it would not be inferred that the bus was being driven rashly and negligently and therefore, the learned trial Magistrate found both the charges not proved against the accused respondents and acquitted him.
8. Aggrieved from the said judgment and order, the present state appeal has been filed.
9. In this appeal, it has been argued by the learned P.P. that all the witnesses have deposed that the bus in question was going with very high speed, therefore, presumption should have been drawn of rash and negligent driving and thus, the findings of learned Magistrate are erroneous one and should be set aside and the appeal should be allowed.
10. In my opinion, the findings of learned Magistrate on the point that the vehicle was not being driven rashly or negligently are liable to be confirmed one as they are based on correct appreciating of evidence.
11. No doubt P.W. 1 Dagla Ram, P.W. 2 Bodu Ram, P.W. 3 Mangi Lal and P.W. 4 Govind Ram have stated that the vehicle was at high speed, but speed is not the sole contention for determining the negligent driving of the vehicle, unless and until it is proved by cogent evidence that the vehicle was being driven rashly or negligently.
12. In this case by simply stating that the vehicle was being driven negligently is not sufficient to prove this fact. Apart from this, site plan Ex. P/6 shows that the incident took place on the middle of the road and, therefore, it may be possible that cow might have suddenly appeared on the road and struck against the bus. Hence no case for offence under Section 279, I.P.C. is found proved against the accused respondent and the findings of the learned Magistrate in this respect are correct one.
13. So far as offence under Section 429, I.P.C. is concerned, the intention is gist of the offence. Section 429 will only apply in those cases where there is deliberate attempt on behalf of the accused to commit mischief. The commission of mischief involves animus to do something. Where the accused has no intention of either killing or poisoning maiming or rendering useless any of the animus mentioned in that section, this section will not apply.
14. Since it is accident case and there is nothing on record that the accused respondent had any enmity with P.W. 1 Dagla Ram and if the accident has taken place then it cannot be said that any mischief was committed by the accused respondent. It may further be stated here that merely an accident has taken place on public highway would not be sufficient to prove the charge for offence under Section 429, I.P.C. unless the evidence has been led that the accused driving the vehicle had any grudge against the complainant or had required intention or knowledge in causing the accident. Since it is a simple case of accident, therefore, mens rea of causing the accident is absent and in these circumstances, the findings of acquittal for offence under Section 429, I.P.C. recorded by the learned trial Magistrate are liable to be confirmed one.
For the reasons mentioned above, the present State appeal is dismissed after confirming the judgment and order dated 29-10-85 passed by the learned Civil Judge and Addl. Chief Judicial Magistrate, Parbatsar in Cr. Case No. 285/1985.