Uttarakhand High Court
Jeevan Kumar vs State Of Uttarakhand on 13 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 248 of 2024
Jeevan Kumar ........Revisionist
Versus
State of Uttarakhand .....Respondent
Present:-
Mr. Mani Kumar, Advocate for the revisionist.
Ms. Manisha Rana Singh, AGA for the State.
Mr. D.N. Sharma, Advocate for the private respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the
followings:-
(i) Judgment and order dated
05.07.2019 passed in Criminal Case
No. 12869 of 2013, State of
Uttarakhand v. Jeevan Kumar, by
the court of Additional Chief Judicial
Magistrate/3rd Additional Civil Judge
(S.D.), Rudrapur, District Udham
Singh Nagar ("the case"). By it, the
revisionist has been convicted under
Sections 279, 304A and 427 IPC and
sentenced as follows:-
(a) Under Section 279 IPC -
rigorous imprisonment for a
period of six months and a
fine of Rs. 500/-. In default
of payment of fine, additional
rigorous imprisonment for a
period of fifteen days.
(b) Under Section 304A IPC -
rigorous imprisonment for a
period of one year and a fine
of Rs. 5,000/-. In default of
payment of fine, additional
rigorous imprisonment for a
period of two months.
(c) Under Section 427 IPC - fine
of Rs. 1,000/-. In default of
payment of fine, rigorous
imprisonment for a period of
fifteen days.
(ii) Judgment and order dated
21.10.2023 passed in Criminal
Appeal No. 226 of 2019, Jeevan
Kumar v. State of Uttarakhand, by
the court of 3rd Additional Sessions
Judge, Rudrapur, Udham Singh
Nagar, by which the appeal has been
dismissed and the judgment and
order passed in the case affirmed.
2. Heard learned counsel for the parties and
perused the record.
3. The prosecution case, briefly stated, is as
follows.
4. On 05.04.2022, PW 1 Dharmendra Gupta was
riding on a motorcycle driven by his father Shiv Dayal
Gupta ("the deceased"). At 06:00 in the evening, the
deceased stopped the motorcycle to answer the call of the
nature. Meanwhile, the FIR states, a vehicle bearing
registration No. PB 29 E 9225 ("the vehicle") being driven
in rash and negligent manner hit the deceased, due to
which the deceased died on the spot. PW 1 Dharmendra
Gupta lodged the FIR, which the basis of Case Crime No.
27 of 2012, under Sections 279, 304A, 427 IPC, P.S.
Dineshpur, District Udham Singh Nagar. After
investigation, charge sheet was submitted against the
revisionist under Sections 279, 304A, 427 IPC. This is the
basis of the case.
5. The accusation was read over to the revisionist
on 14.12.2012. He did not accept the accusation and
claimed trial.
6. In order to prove its case, the prosecution
examined as many as six witnesses, namely, PW 1
Dharmendra Gupta, PW 2 Rohit Kumar Gupta, PW 3
Dr. SS Kunwar, PW 4 Rajkumar Munjal, PW 5 HCMT RD
Bhatt and PW 6 SI Yogesh Kumar.
7. After the prosecution evidence, the revisionist
was examined under Section 313 of the Code of Criminal
Procedure, 1973. He did not accept the prosecution case.
According to him, he was falsely implicated.
8. By the impugned judgment and order dated
05.07.2019, the revisionist was convicted and sentenced
as stated hereinabove, which was unsuccessfully
challenged by the revisionist in appeal.
9. On 07.05.2024, when the revision was taken
up for hearing, the learned counsel for the revisionist
submitted that he would argue on the quantum of
sentence only. He would submit that the sentence is
excessive; the revisionist has already undergone almost
half of the sentence. On that date, the revision was
admitted on the quantum of sentence.
10. Learned counsel for the revisionist would
submit that the revisionist has been sentenced for a
maximum period of one year and he has already
undergone half of the sentenced; therefore, no purpose
would be served if he is still kept in the custody.
11. When the file was perused, the Court wanted to
know from the learned counsel for the revisionist as to
what is the evidence against the revisionist? He would
submit that the PW 1 Dharmendra Gupta has named the
revisionist based on the statement of the owner of the
vehicle.
12. Learned State Counsel would submit that the
revisionist himself surrendered in the matter in the court
concerned and he also got the vehicle released, which was
taken into custody by the police.
13. PW 1 Dharmendra Gupta is the informant in
the case. According to him, he was riding the motorcycle
with the deceased; suddenly, the vehicle hit the deceased,
due to which he died. In the last two sentence of his
examination-in-chief, PW 1 Dharmendra Gupta has said
that the driver of the vehicle was the revisionist and his
name was told to this witness by the owner of the vehicle.
14. PW 2 Rohit Kumar is the witness of inquest. He
is not an eyewitness. PW 3 Dr. S.S. Kunwar is the doctor,
who conducted the post-mortem of the deceased. He has
proved the post-mortem report, Ex. A-3. PW 4 Rajkumar
Munjal is another eyewitness. He has corroborated the
statement of PW 1 Dharmendra Gupta, but in his cross-
examination, he has stated that he did not see the driver.
PW 5 HCMT RD Bhatt is the police officer of Mechanical
Branch. He technically inspected the vehicle. PW 6 SI
Yogesh Kumar is the Investigating Officer. He has stated
as to what had been done by him during investigation.
According to him, the revisionist had surrendered during
investigation and he had also taken the statement of the
revisionist.
15. It is a revision. The scope is quite restricted to
the extent of examining the correctness, legality and
propriety of the impugned judgment and order. In a
criminal revision, generally evidence is not evaluated,
unless the finding is based on inadmissible evidence or
when admissible evidence is not considered or the finding
is perverse i.e. against the weight of any evidence.
16. In the instant case, the prosecution has not
even shown that the revisionist was driving the vehicle at
the relevant time, when it hit the deceased. The basis of
conviction of the revisionist is on three counts, namely, (i)
the vehicle was involved in the accident, (ii) the revisionist
did surrender before the court and (iii) the revisionist
being owner of the vehicle got the vehicle released in his
favour.
17. If a person surrenders into custody, it is not a
presumption of his guilt. Being a suspect, a person may
surrender to custody or may at times seek anticipatory
bail, but drawing such an inference to the extent of
conviction is not permissible in the eyes of law.
18. If the revisionist is the owner of the vehicle and
the vehicle is involved in the accident, it per se does not
establish the guilt of the owner. Even if, the owner of the
vehicle got released the vehicle in his favour, it also does
not establish the guilt of the owner of the vehicle. The
prosecution could have got the information from the
owner of the vehicle as to who was driving the vehicle.
The owner or some person in that respect could have
been examined.
19. In so far as the evidence is concerned, PW 1
Dharmendra Gupta in last two lines has stated that the
revisionist was driving the vehicle. In the next sentence,
he has also given the source as to who told him the name
of the revisionist and the source, as per this witness, is
the owner of the vehicle, who told him the name of the
driver i.e. the revisionist. But, the prosecution otherwise
says that the revisionist is the owner of the vehicle. It
further doubts the statement of PW 1 Dharmendra Gupta.
PW 1 has not identified the revisionist as a person, who
was driving the vehicle at the relevant time.
20. The prosecution has been successful in
establishing and proving that the vehicle was involved in
the accident. In fact, the driver of the vehicle had left the
vehicle at a distance, but had managed to escape. But,
there is no evidence even to suggest that the revisionist
was driving the vehicle at the relevant time.
21. In view thereof, this Court is of the view that an
interference is warranted by this Court. Accordingly, the
criminal revision deserves to be allowed and the
judgment and order passed in the case as well as in the
appeal deserves to be set aside.
22. The criminal revision is allowed. The judgment
and order dated 05.07.2019 passed in the case and the
judgment and the order dated 21.10.2023 passed in the
appeal are set aside. The revisionist is acquitted of the
charges under Sections 279, 304A and 427 IPC.
23. The revisionist is in jail. Let he be released
forthwith, if not wanted in any other case. The bail bond
of the revisionist is cancelled and the sureties are
discharged of their liabilities.
24. Let a copy of this judgment along with the
lower court record be forwarded to the court concerned.
(Ravindra Maithani, J.)
13.05.2024
Avneet/
