Ashok Kumar v. State Of Chhattisgarh
HIGH COURT OF CHHATTISGARH BILASPUR riminal Revision No. 211 of 2004 Ashok Kumar
Versus
State Of Chhattisgarh C A V ORDER K.
Post for pronounCement of Order on..;LQ../09/2017 ;.g../09/2o1 7 "
HIGH COURT OF CHHATTISGARH BILASPUR Reserved on 22/09/2017 DEIivered on %l09l201 7 Criminal Revision No. 211 of 2004 i (Arising out ofjudgment/order dated 27.03.2004 in Criminal Appeal No. 46/2004 of i the learned Additional Sessign Judge, Baikunthpur Korea) i - Ashok Kumar S/o Nansai aged 22 years, R/o Village - Madhala, Dietrjct - Koria (C.G.) ---- Applicant
Versus
- State'Of Chhattisgarh Through District Magistrate, Koria (C.G.) ---- Non-applicant "
ForApplIcant :
Shri D.N. Praiapati, Advocate For State :
Shri R.K. Jaiswal, Panel Lawyer Hon'ble Shri Justice Sharad Kumar Gupta '
CAV ORDER 1.
The applicant preferred this Criminal Revision against judgment dated 27.03.2004 pronounced by Additional Session Judge, Baikunthpur (Korea) Criminal Appeal No.
46/2004 whereby the Additional Session Judge affirmed Judgment conviction order sentence dated 15.01.2004 pronounced by JMFC, Baikunthpur (Korea) Criminal Case No.
214/2003 whereby whereunder applicant was convicted for the offence under Section 304A of lndian Penal Code (hereafter called as 'IPC') ll'
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sentenced to undergo rigorous imprisonment for one year and also to pay fine Rs. 1000/-, with defauit stipulation. The unfoided prosecution case is that on 07.07.2002 afternoon the deceased Harilal Cherwa, his wife Phool Kunwar, his daughter Neera Kumari were returning back from Charcha market their house by jeep number CG/1 6/A/0070. The deceased had put his bag containing water ufbottle on carrier at top jeep.
Near railway crossing at Kharbat, Neera Kumari felt thirst, thus deceased"asked to the applicant to stop the jeep but instead of stopping the jeep, he drove it speedily. At that moment of time, the deceased tried to take out the water bottle from the said bag by standing on the back of the jeep. The barrier of forest check point at Kharbat, at that time, was down.
The head the deceased dashed with that wooden barrier and as a result he fell down, out of the jeep. The deceased was rushed hospital by his family members and others, where the doctors declared him brought dead. Thereafter, a merg intimation was registered in outpost Charcha.
After completion of the inquiry and investigation, charge sheet was filed against the applicant. After conclusion of the trial, trial Court and appellate Court convicted sentenced appellant as aforesaid.
Hence, this revision.
3.3 Advocate Shri D.N.
Prajapati for the applicant argued that the forest barrier was at such a height that the jeep could have easily passed through. Therefore, both the Sub-ordinate Courts have committed error convicting sentencing applicant, as they have not appreciated the evidence properly. The benefit of doubt has to be given to the applicant. 4.;
Shri R.K.
Jaiswal, Panel'Lawyer for the State supported the 's findings given by both the Courts below submitting that they are in accordance with law.
5.1 l'have gone through the records with utmost care. s 6.
It is well settled law that a Revisional Court by exercising its revisional power only may interfere with findings the'
lower Court where lower Court has committed some illegality or given perverse findings or carried out miscarriage ofjustice.
7.
Shri D.N.
Prajapati, counsel for the applicant relied on para-6 the judgment in Tukaram Sitaram Gore v.
State {AIR Bombay 164}. The relevant part is extracted as under:- "6.
i have come across several cases prosecutions under' Section 304-A which Magistrates appear have presumed negligence, once a man is knocked down and killed by a motorist.
There can be no such presumption. Not only must there be evidence rashness or negligence acceptable Court but, as laid down by the Supreme Court
case of Suleman Rahiman v.
State Maharashtra (AIR 1968 SC 829), there must be proof that the rash or negligent act of the accused was the proximate cause of the death and there must be a direct nexus between the death of a person and the rash or negligent act accused.
In running-down cases death pedestrian may very well be purely accidental, or may be due his own negligence.
To presume that because a pedestrian has been knocked down has died, driver motor vehicle that knocked him down must be guilty of rashness or negligence overlooks these two possibilities. It is necessary for subordinate Courts to bear mind that prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused.
"
In Vishnu Kumar v.
State {2013 (1) LRC 176(Del)} High Court of Delhi has observed that the defence taken by the accused that the deceased had in-fact fallen down from bus while attempting to get down from the moving bus.
The prosecution failed rule out the possibility of the deceased falling down from bus while trying to get down before bus has stopped completely.
Conviction set aside extending benefit of doubt to the accused.
In Arjun Singh v.
State Rajasthan {2013(1) LRC 307(Raj)} the Rajasthan High Court observed that in absence of evidence that accused was rash or negligent his
@ .5driving, only due fact that accident has taken place, accused cannot be held guilty of rash or negligent driving. It is the prosecution case that the deceased Harilal Cherwa, Phool Kunwar and Neera Kumari were sitting on the back seat of the jeep. PW-1 Vishwanath Sahu, PW-2 Rajroop stated para-1 of their statement on oath that the deceased, his wife and his daughter were'éitting on the back side of the jeep. lt is also prosecution case that when the jeep reached very near to the said barrier, the deceased was trying to take out the water bottle from the bag which was kept on the carrier of t the jeep, by standing on back side of the jeep, his head struck with the down wooden barrier of the Forest Department, the wooden barrier did not hit front portion jeep.
It emerges from these facts that at time accident, except the back portion of the jeep, remaining part of the jeep had already crossed said barrier.
lt is noticeable from these facts that four wheeler like car, jeep used cross generally even when the barrier was kept down.
lt is not the prosecution case that while deceased was trying to take out the water bottle by standing on the back side of the jeep, he or somebody told applicant stop the jeep but applicant ignored it and did not stop the jeep. Looking to these facts and circumstances, and considering the aforesaid judicial precedents, this Court finds that both the sub-ordinate Courts
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(éz § have given the perverse findings causing miscarriage ofjustice ;
that the applicant was driving the said vehicle allegedly in a rash or negligent manner which was the proximate cause death of theldeceased there must have a direct nexus between the death of the deceased and rash or negligent act i of the accused.
Thus, this Court allows this revision and sets aside the judgment of conviction and order of sentence dated l1w: 27.03.2004 15.01.2004.
Consequently, applicant is acquitted from the charge under Section 304A IPC. £The applicant is on bail.
His bond shall stand discharged subject provisions contained Section 437A of the Cr.P.C.
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