Madhya Pradesh High Court
Neeraj Kewat vs The State Of Madhya Pradesh on 17 February, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGHCOURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CRIMINAL REVISION NO. 5468 OF 2023
BETWEEN:-
NEERAJ KEWAT, SON OF SURESH KEWAT,
AGE-24 YEARS, RESIDENT OF AJLESHWAR,
POLICE STATION NAISARAY, DISTRICT
ASHOK NAGAR (MADHYA PRADESH)
.....REVISION PETITIONER
(SHRI PAWAN KUMAR MAHESHWARI-
ADVOCATE FOR REVISION PETITIONER)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
TH
ES
STATION NAISARAY, DISTRICT ASHOK NAGAR
(MADHYA PRADESH)
.....RESPONDENT
(SHRI LOKENDRA SHRIVASTAVA- PUBLIC PROSECUTOR FOR
RESPONDENT- STATE)
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Reserved on : 30-01-2024
Pronounced on : 17 -02-2024
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This revision petition having been heard and reserved for order,
coming on for pronouncement this day, Justice Sanjeev S. Kalgaonkar
pronounced the following:
ORDER
This Criminal Revision under Section 397 read with Section 401 of CrPC
is filed assailing the judgment of conviction and order of sentence dated
07-11-2023 passed by Sessions Judge, Ashok Nagar in Criminal Appeal
No.86 of 2023, whereby the judgment of conviction and order of
sentence dated 11-07-2023 passed by Judicial Magistrate First Class,
Ashok Nagar in RCT No.119 of 2019 was affirmed. Learned Judicial
Magistrate First Class had convicted the revision petitioner for offence
punishable under Section 279 of IPC and sentenced him to fine of
Rs.500/- with default stipulation of imprisonment for 15 days. Revision
petitioner was further convicted for offence punishable under Section 338
of IPC (two counts) and sentenced to undergo rigorous imprisonment of
six months and fine of Rs.500/- for each count, with default stipulation of
imprisonment for 15 days. Revision petitioner was further convicted for
offence punishable under Section 3/181 of the Motor Vehicles Act and
sentenced to fine of Rs.200/- with default stipulation of imprisonment for
seven days.
(2) For the sake of convenience, revision petitioner- Neeraj Kewat
shall hereinafter refer to as ''Accused''.
(3) The exposition of facts giving rise to this revision are, in brief, as
under:-
(i) Farooq Khan was admitted to LBS Hospital, Bhopal due to
injuries sustained in road accident on 04-12-2028 around 19:00 hrs
near Village Piprol, PS Naisaray, District Ashok Nagar. Dr. Ashish
Verma of LBS Hospital reported to PS Shahjahanbad, Bhopal. ASI
Rajendra Shrivastava of PS Nai Sarai, District Ashoknagar
enquired in the matter and registered FIR at Crime No.07 of 2019
for offences punishable under Sections 279 and 337 of IPC against
the offending vehicle and Others. During enquiry, it was found that
Farooq Khan was returning on motorcycle from Ajleshwar in the
evening of 04.12.2018, Saddam Khan was driving the motorcycle.
As they reached near Piprol, accused Neeraj Kewat driving his
motorcycle bearing Registration No.MP 67-MF- 0443 rashly and in
high speed, dashed their motorcycle. Saddam Khan and Farooq
Khan fell down and sustained injuries. Neeraj Kewat fled away.
Istaq Khan and Sahib Khan arrived on spot and took injured Farooq
Khan and Saddam Khan to the hospital. Fracture of tibia and fibula
of left leg of Saddam Khan and fracture of right temporal bone of
Farooq Khan were found on X-ray and CT-Scan. Statements of the
witnesses were recorded. Relevant seizures were made. On
completion of investigation, Final Report was filed on 06.02.2019
for offences punishable under Sections 279, 337, 338 of IPC and
Section 3/181 of Motor Vehicles Act against accused Neeraj Kewat.
Learned Trial Court, after trial, convicted accused Neeraj Kewat for
offence punishable under Sections 279 of IPC, 338 of IPC (two
counts) and Section 3/181 of the Motor Vehicles Act and sentenced
him, as mentioned above.
(ii) Accused Neeraj Kewat preferred an appeal before learned
Sessions Judge, Ashok Nagar assailing the judgment of conviction
and order of sentence dated 11.07.2023 passed by trial Court in
RCT No.119/2019. Learned Sessions Judge vide impugned
judgment dated 07.11.2023 rejected the appeal and affirmed the
judgment of conviction but amended the sentence upholding that
sentence of fine under Section 279 of IPC stands covered within the
sentence for offence punishable under Sections 338 of IPC.
(4) This revision petition is filed assailing the impugned judgment
dated 07.11.2023 on following grounds:-
(i) Learned First Appellate Court has failed to appreciate the
evidence properly.
(ii) The eye-witnesses have failed to identify the accused.
Learned Trial Court and First Appellate Court ignored this
important aspect of the matter.
(iii) Accused was aged 20 years at the time of alleged incident.
He should have been extended the benefit of Probation of
Offenders Act.
(iv) The prosecution has failed to prove the alleged offence.
(v) Learned Trial Court and First Appellate Court committed an
error in convicting and sentencing the accused.
On such grounds, it is requested that the judgment dated 07.11.2023,
passed by learned First Appellate Court and the judgment dated
11.07.2023 passed by learned Trial Court be set aside and accused Neeraj
Kevat be acquitted of all the charges.
(5) Learned Counsel for the revision petitioner, in addition to the
grounds mentioned in the revision petition, referring to the evidence of
Saddam Khan (PW-1), Istaq (PW-2), Farooq (PW-4) and Sahib (PW-5),
submits that none of the witnesses has properly identified the accused as
rider of motorcycle which dashed motorcycle of Saddam and Farooq. All
these witnesses are close relatives. There are material contradictions and
inconsistencies in their evidence. Learned Trial Court and First Appellate
Court did not consider this aspect of the matter. The judgment of
conviction and order of sentence passed by learned First Appellate Court
is based on conjectures and surmises, therefore, deserves to be set aside.
(6) Per contra, learned counsel for the respondent State contends
that both the judgments are based on proper appreciation of evidence on
record. Learned Appellate Court has given appropriate reasoning in the
impugned judgment, therefore, in absence of any patent illegality or
perversity, the concurrent finding of conviction and sentence arrived at
by learned Trial Court and First Appellate Court, cannot be interfered
with.
(7) Heard learned Counsel for both the parties and perused the record.
(8) Under Section 397 of Cr.P.C, the Court is vested with the power
to call for and examine the record of any inferior Court for the purpose of
satisfying itself as to legality and regularity of any proceedings or order
made in a case. The object of this provision is to correct the patent defect
or an error of jurisdiction or the perversity which has crept in the
proceedings.
(9) However, this Court, in revision, exercises supervisory jurisdiction
of restricted nature. It cannot re-appreciate the evidence, as second
Appellate Court, for the purposes of determining whether the concurrent
finding of fact reached by learned Magistrate and the learned Sessions
Judge was correct. Recently, in case of Malkeet Singh Gill v. State of
Chhattisgarh, reported in (2022) 8 SCC 204, the Supreme Court
observed as under-
"10.Before adverting to the merits of the contentions, at the
outset, it is apt to mention that there are concurrent findings
of conviction arrived at by two courts after detailed
appreciation of the material and evidence brought on record.
The High Court in criminal revision against conviction is not
supposed to exercise the jurisdiction alike to the appellate
court and the scope of interference in revision is extremely
narrow. Section 397 of the Criminal Procedure Code (in short
"CrPC") vests jurisdiction for the purpose of satisfying itself
or himself as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior court. The
object of the provision is to set right a patent defect or an
error of jurisdiction or law. There has to be well-founded
error which is to be determined on the merits of individual
case. It is also well settled that while considering the same,
the Revisional Court does not dwell at length upon the facts
and evidence of the case to reverse those findings."
(Duli Chand v. Delhi Admn.(1975) 4 SCC 649; State of
Maharashtra v. Jagmohan Singh Kuldip Singh Anand (2004) 7
SCC 659 also relied)
(10) In the light of aforementioned proposition of law, the evidence on
record is being examined.
(11) Both the Courts concluded that the prosecution has proved beyond
doubt that accused Neeraj was driving motorcycle at fast speed and
dashed the motorcycle of Saddam, thereby, caused grievous hurt to
Saddam and Farooq. It is an admitted fact that alleged accident happened
around 7 in the evening on 04.12.2018. All the prosecution witness have
stated that it was already dark. Saddam (PW-1) and Farooq (PW-4) have
stated that one motorcycle coming at high speed has dashed their
motorcycle. They could not identify the driver of other motorcycle.
Farooq (PW-4) specifically stated that it was dark night, therefore, he
could not see the driver of other motorcycle or the registration number of
other motorcycle. Saddam (PW-1) has stated that Sahib and Istaq Khan
had told him that Neeraj was driving other motorcycle. Istaq Khan(PW-2)
has stated that he could not see the other motorcycle because it was night.
Other witness Sahib (PW-5) although stated in examination in-chief that
Neeraj has dashed the motorcycle of Saddam, but in cross-examination,
he has specifically admitted that he has not seen Neeraj on spot of
accident. Istaq (PW-2) and Sahib (PW-5) have stated that their
motorcycle was half a kilometer away from the motorcycle of Saddam
when the accident happened. It goes to show that the injured or the eye
witness did not identify Neeraj as driver of offending motorcycle. No
inference can be drawn against the accused for the reason that the
accident has happened and the injured has made allegation against the
accused. Prosecution has to prove rash and negligent act of the accused.
Mere driving at high speed does not ipso-facto prove rashness or
negligence on the part of driver. There is no evidence on record to suggest
that Neeraj was driving the motorcycle at excessively high speed. Rather,
there is no evidence that Neeraj was driving the offending motorcycle.
There is no evidence to suggest that how the accident has happened.
(12) In such a scenario, the prosecution had miserably failed to prove
rash or negligent act on the part of accused Neeraj Kewat. Rather, his
complicity in alleged offence is highly doubtful from the evidence on
record. Both the Courts did not consider aforementioned apparent
evidence. The conclusion drawn against accused Neeraj with regard to
rash and negligent driving and causing grievous hurt by negligent act by
both the Courts is perverse and against the evidence on record. The
impugned judgment of conviction is a patent illegality requiring
interference in exercise of supervisory jurisdiction under Section 397 r/w
Section 401 of CrPC.
(13) Consequently, the revision-petition is allowed. The impugned
judgment dated 7.11.2023 passed by the Sessions Judge, Ashok Nagar in
Criminal Appeal No.86/2023 and the judgment of trial Court dated
11.07.2023 passed by Judicial Magistrate First Class in RCT
No.119/2019 is hereby set aside and the revision-petitioner Neeraj stands
acquitted for offence punishable under Section 279 of IPC, 338 (two
counts) of IPC and Section 3/181 of Motor Vehicles Act. The petitioner
shall be entitled for remittance of the fine amount. He shall be set at
liberty forthwith.
(14) With aforesaid observations, this revision petition is hereby
disposed of.
(15) Let copy of this order be sent to the First Appellate Court as well
as the Trial Court for information and necessary action.
(SANJEEV S KALGAONKAR)
JUDGE
MKB/VIJAY
VIJAY Digitally signed by VIJAY TRIPATHI
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
TRIPAT
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2d97ddae5364f1d4b042dbc59921b7
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st=Madhya Pradesh,
serialNumber=58392D8C4E7C9693BF
HI
EEB5B46B3CA006F1127E89008952BB
EC528CE4D82551BD, cn=VIJAY
TRIPATHI
Date: 2024.02.17 18:29:50 +05'30'
