Bahadur Kha vs State
2021 Latest Caselaw 7483 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Criminal Revision Petition No. 1053/2003

Bahadur Kha son of Shri Devaji, by caste Cheeta, Resident of
Ratidang, Policke Station Krischien Ganj, Ajmer.
(At present accused is lodged in Central Jail, Ajmer)
                                                                  ----Petitioner
                                   Versus
The State of Rajasthan
                                                                ----Respondent


For Petitioner(s)        :     Mr.N.C.Choudhary
For Respondent(s)        :     Mr.Ramesh Chaudhary, PP



             HON'BLE MR. JUSTICE FARJAND ALI

                         Judgment / Order

DATE OF RESERVED:                                      01/12/2021

DATE OF PRONOUNCEMENT:                                 10/12/2021

BY THE COURT:

By way of filing this revision petition, legality correctness and

propriety of the judgment dated 3.9.2003 passed by the learned

Special Judge, SC/ST cases, Ajmer in criminal Appeal No.

115/2003 have been challenged whereby the learned Addl.

Sessions judge has dismissed the appeal filed by the petitioner

against he judgment of conviction and order of sentence dated

5.9.2002 in Cr.Regular Case no. 521/1988 whereby the petitioner

had been convicted for the accusation of Section 279 and 304A of

the IPC and sentenced to suffer six months' Simple Imprisonment

with a fine of Rs.500/- in default of payment of fine to further

undergo one month's additional simple imprisonment; for offence

under Sec. 279 IPC he was sentenced to suffer one year's simple

(2 of 8) [CRLR-1053/2003]

imprisonment and fine of Rs.500/- in default of payment of fine to

further undergo one month's additional simple imprisonment. Both

the sentences were ordered to run concurrently.

2. Brief facts giving rise to the instant revision petition are that

on 29.10.1988, at the behest of complainant PW-2 Ram Swaroop,

an FIR came to be lodged at P.S. Alwargate, Ajmer alleging therein

that on that day, around 12.30 pm, while he was sitting on his

shop, he saw a truck bearing registration no. RNW 4111, hit the

cycle; as a result thereof, cyclist Smt.Narainee succumbed to the

injuries at the spot. It is alleged in the FIR that the truck was in

high speed and upon enquiry, the complainant came to know the

name of the driver being the petitioner. It is notable that in the

FIR itself, it is clarified that the complainant was not knowing the

the accused prior to the accident. On the basis of the report,

investigation was commenced and after conducting usual

investigation, a charge-sheet came to be submitted against the

accused petitioner for accusation of the offence under Secs. 279

and 304A IPC.

3. Learned Judicial Magistrate after taking cognizance of the

offence on 28.4.1989 explained the substance of accusation to the

petitioner and thus commenced trial. During the course of trial, as

many as 08 witnesses were produced on behalf of the prosecution

and reliance was placed on 10 exhibits. Thereafter an explanation

was sought from the accused under Section 313 Cr.P.C wherein he

abjured and claimed innocence. However, no evidence in defence

was produced.

(3 of 8) [CRLR-1053/2003]

4. After hearing the counsel for the parties i.e. counsel for the

petitioner and learned Public Prosecutor, the learned Trial Judge

vide its judgment dated 5.9.2002 convicted and sentenced the

accused as mentioned above. The said judgment was assailed by

the accused by filing an appeal before the learned Sessions judge,

but the same was dismissed vide judgment dated 3.9.2003 while

affirming the judgment of conviction and order of sentence dated

5.9.2002.

5. Being aggrieved by the judgments passed by the learned

Trial Judge as also the Appellate Court, the accused petitioner has

preferred the instant revision petition before this court and the

same is to be considered herein below.

6. Challenging the finding of guilt as arrived at by the learned

Trial Judge and affirmed by the learned Appellate Court, the

learned counsel for the petitioner submits that the learned courts

below have erred in appreciating the correct legal and factual

aspect of the matter and thus erred in reaching on a finding of

guilt. He submits that the prosecution has miserably failed to

appreciate the evidence to this regard that the vehicle in question

was being driven by the accused petitioner at the relevant point of

time and he was driving the vehicle rashly and negligently; as a

result thereof, the cyclist sustained injuries and died. Counsel

submits that the entire case of the prosecution hinges upon the

sole testimony of evidence of PW-2 Ram Swaroop who happened

to be the complainant of this case also.

(4 of 8) [CRLR-1053/2003]

7. Learned Public Prosecutor has supported the judgment

passed by the courts below and urged that the judgments passed

by courts below do not require any interference by this court in

the revision before this court.

8. Heard, after careful examination of the record of the case

and the arguments made by the counsel for the parties, this court

observed as under-

9. PW-3 Smt. Guddi was projected by the prosecution as an eye

witness but in the trial she did not support the prosecution and

declared hostile. Likewise PW-4 Vishnu Mangani and PW-5 Aarist

have not supported the prosecution story and deposed that they

did not see the accident, and reached at the spot after the

accident. PW-1 Biharilal and PW-7 Aashadas Parwani are the

witnesses of Panch-nama "laash' and site memo. PW-8 Shantilal is

the Investigating Officer of the case who conducted the

investigation and thereafter handed over the file to concerned

Station House Officer. PW-6 is Dr.V.D.Kaviya who conducted the

autopsy and opined that the cause of death of the deceased was

the head injury. PW-4 Bhagirath happened to be the police

employee who prepared the mechanical report of the seized truck.

10. Adverting to the first point raised by the counsel for the

petitioner that whether at the relevant point of time, the vehicle

was being driven by the accused petitioner, the very important

piece of evidence would be the FIR wherein the first informant

PW-2 Ramswaroop alleged that after accident he made inquiry and

got to know the name of accused petitioner. However, during the

(5 of 8) [CRLR-1053/2003]

trial, he made material improvement in his statement and went to

say that the vehicle was being driven by the accused petitioner

and he knew the accused prior to the accident. This witness PW-2

Ram Swaroop got examined on 15.7.1997 and on that day, the

accused was not present before the court as the application for

exemption of his presence for that day had been accepted by the

learned trial court. To verify this fact, this court has gone through

the order-sheets of the proceedings of trial court and it is reflected

that the accused was not present on 15.7.1997 when the witness

was examined by the trial court. It is admitted position that the

identification of the accused was not made during the course of

investigation or thereafter. Now the question would definitely

emerged that how the witness could say that it was the accused

who was driving the vehicle at the relevant point of time. It is now

well settled that if the accused is already not known to the

witness, test identification must have been conducted to verify the

fact that the accused was the same who committed the offence.

Endeavour has been made by the agency to assert the above fact

by issuance of a notice under Section 88 of the Motor Vehicle Act

to the registered owner of the vehicle Sh.Veni Gopal Kalu wherein

it is said that on the date of incident i.e. 29.10.1988, he entrusted

the vehicle to the present accused. But surprisingly owner Sh.Vani

Gopal Kalu has not been produced in the trial by the prosecution.

Even if it is assumed that in a reply to the notice under the Motor

Vehicle Act, if the owner says that he entrusted the vehicle to a

particular driver, it does not ipso facto proves that at the relevant

point of time too, the vehicle was being driven by the same

person. Be that as it may, it could safely be inferred that except

PW-2 Ram Swaroop, no other oral or documentary evidence has

(6 of 8) [CRLR-1053/2003]

been produced to substantiate the charge that at the relevant

point of time, the vehicle was being driven by the accused

petitioner. As far as credibility of evidence of PW-2 Ram Swaroop

is concerned, as stated above, in view of discrepancy and material

improvement made by him during the course of trial, his

testimony is not at all reliable and would be unsafe to infer that

the accused was driving the vehicle at the relevant point of time.

It is the theory of criminal jurisprudence that prosecution is under

an obligation to prove the charge /allegation beyond every shadow

of reasonable doubt to bring home the guilt of accused.

11. After careful examination of the statement of PW-2 Ram

Swaroop, this court does not find him a reliable witness because of

the discrepency appearing in his testimony and the material

improvement made by him during trial. To arrive at the conclusion

of the guilt, evidence must be cogent and clinching which is not

appearing in the case in hand. Thus this court finds that the

prosecution has failed to prove the fact that the vehicle was being

driven by the accused petitioner at the relevant point of time when

the accident occurred and as a result thereof, the cyclist died.

12. Now coming to the next point, although when the finding

regarding the petitioner being the person who was driving the

vehicle, has not been found proved, the other aspects are not

required to be dealt with yet it would be pertinent to mention here

that the evidence regarding rash or negligent act too has not been

brought on record satisfactorily. Right from the inception in the

FIR itself, it is stated that the vehicle was being driven at the high

speed, nowhere it is said that same was being driven rashly or

(7 of 8) [CRLR-1053/2003]

negligently. High speed by itself may not in each case be sufficient

to hold that a driver is rash or negligent. Speed alone is not the

criterion for deciding the rashness or negligence on the part of the

driver. The allegation of high speed would not tantamount to

rashness or negligence. A rash act is primarily an over hasty act.

It is opposed to a deliberate act. Still a rash act can be a

deliberate act in the sense that it was done without due care and

caution. Culpable rashness lies in running the risk of doing an act

with recklessness and with indifference as to the consequences.

The Hon'ble Apex Court in various decisions has observed that the

evidence of high speed simpliciter is not ipso facto proves the

rashness or negligence. Here in this case, the sole eye witness

first time in his examination during trial stated that the vehicle

was running at a speed of 40-50 km/hour. What is emanating

from the testimony of solitary eye witness is that the said witness

was a shop keeper of the nearby place and shop was situated

around 20 ft away from the place of accident. The place where the

accident took place was the main road of Ajmer city and there was

a curve where the accident took place. It is the rule of prudence

that the evidence of solitary eye witness must be of sterling

worth, it should be of impeccable quality. Thus before convicting a

person for a charge, every doubt should have been wiped out.

After careful screening of the evidence, I am of the view that

placing reliance on the sole testimony of this witness would be

unsafe to convict the accused petitioner. The learned trial Judge as

well as Appellate Court have erred in appreciating the solitary eye

witness who had made material improvement, as infirmity &

discrepancy were appearing in his testimony.

(8 of 8) [CRLR-1053/2003]

13. Accordingly, this court is convinced that the findings arrived

at by the learned trial court and affirmed by the Appellate Court

deserve to be quashed and set aside. The judgment of conviction

and order of sentence passed by the learned trial court dated

5.9.2002 and affirmed by the Appellate Court vide judgment dated

3.9.2003 are hereby quashed and set aside and accused petitioner

deserves to be acquitted from the charges leveled against him.

14. The revision petition is thus allowed. The bail bonds stand

discharged.

15. The record of trial court be sent forthwith.

(FARJAND ALI),J

SANDEEP RAWAT /23/37

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