The State Of Chhattisgarh v. Indar Nagesiya
HIGH COURT OF CHHATTISGARH, BILASPUR Order Sheet Cr.M.P. No. 868 of 2015 State of Chhattisgarh Versus Indar Nagesiya 29/09/2015 Smt. Sobha Kashyap, Deputy Government Advocate for the Applicant/ Appellant.
Heard on the default pointed out by the Registry. On due consideration, default pointed out by the Registry is hereby overruled.
Heard on application for grant of leave to appeal under Section 378 sub-section (3) of the Code of Criminal Procedure (for short 'the Code') followed by memo of acquittal appeal.
Heard on I.A. No. 1 of 2015, an application under Section 5 of the Limitation Act for condonation of delay in filing the Cr.M.P. The instant Cr.M.P. has been preferred after 33 days of its limitation.
On due consideration, I.A. No. 1 of 2015 is allowed and the delay of 33 days in filing the Cr.M.P. followed by acquittal appeal is hereby condoned.
Heard on Cr.M.P. followed by acquittal appeal for grant of leave to appeal against the judgment passed by the Judicial Magistrate, First Class, Ambikapur, Surguja Chhattisgarh vide judgment dated 16.4.2015 in Criminal Case No. 4877 of 2012 acquitting the Respondent for the offence under Sections 279 and 338 of the Indian Penal Code (for short 'the IPC') and Section 3/181 of the Motor Vehicles Act giving him the benefit of doubt.
By filing the instant Cr.M.P. the Applicant/ State submitted that as per the grounds mentioned in the acquittal appeal, the leave may be granted and the appeal be heard on its merit because the trial Court has erred by acquitting the Respondent from the charges. The trial Court was not justified by extending the benefit of doubt to the Respondent under the circumstances of the present case. Learned trial Court was also not justified in holding that rash and negligent Act of the Respondent has not been established by the prosecution as Manoj Kumar Singh (PW-1) and Virendra Kumar (PW-2) have categorically stated that the Respondent has driven the motorcycle in a rash and negligent manner.
Even the prosecution witnesses have also supported the prosecution story and the trial Court has erred in appreciation of the evidence and the deposition of the witnesses before the trial Court. The trial Court has also erred in holding that the prosecution has failed to prove that the Respondent was driving the vehicle without a valid license, however, it was the duty of the Respondent to prove that he was having a valid driving license at the time of incident. Learned trial Court without any appreciation of the provisions of Section 3/181 of the Motor Vehicles Act, wrongly acquitted the accused, which is bad in law and liable to be set aside.
Perused the impugned judgment, the statements of witnesses and other documents annexed with Cr.M.P. followed by the acquittal appeal.
On due consideration, looking to the entire evidence of Manoj Kumar Singh (PW-1) and also the fact
that the Respondent was having valid and effective driving license at the time of incident has not been proved and there is no discussion about the same in the impugned judgment, in the considered view of this Court, this is a fit case where the leave to appeal should be granted. Consequently, the instant Cr.M.P. is allowed. Registry is directed to list the matter under the heading of acquittal appeal.
Lower Court record be called for through usual and fax mode.
The Appellant is directed to pay process fee within seven days from today. Let notice be issued to the Respondent regarding his representation before this Court through usual and registered mode alongwith copy of memo of appeal and other annexed documents, returnable within four weeks.
Registry is directed to list the matter for hearing on admission immediately after the service of notice on the Respondent is complete and after receipt of record. Sd/- (Chandra Bhushan Bajpai) Judge Nimmi