Naresh S/o Babulal, R/o New Colony, Bundi v. Connected

Judgment

1. The State of Rajasthan is in appeal against the judgment dated 19.09.2001 passed by the Additional Sessions Judge (Fast Track) No.1, Bundi in Sessions Case No.27/2001 acquitting the accused-respondent under Section 302 IPC.

2. The case as set up by the prosecution is that on complaint of

Sudharshan Bhatia (hereinafter referred to as ‘complainant’) FIR No. 47/95 dated 12.03.1995 under Section 304-A IPC was registered at Police Station Kotwali, Bundi. The FIR was against an [2025:RJ-JP:30060-DB] (2 of 11) [CRLA-332/2002] unknown vehicle having caused accident by rash and negligent driving of jeep, injuring Suneel (hereinafter referred to as “deceased”) who when taken to the hospital was declared ‘brought dead’. On 13.03.1995, an application was given by the complainant mentioning that on 12.03.1995 at around 8 PM deceased while having tea at Vishwakarma Hotel with Bhanwarlal Nai, Dalveer, Adarsh Saxena, Harish Sharma and Ram Singh had heated exchange of words with Naresh @Pintu (accused). The accused threatened the deceased to bear the consequences and that he will not see the dawn. Further that on 03.03.1995, there was altercation between the deceased and accused during Nikasi (ceremony regarding marriage procession) of Bithal and the deceased was told by Harish Sharma and Ram Singh that the accused had threatened to kill him. It was stated that the accident of the deceased was with jeep bearing registration No.RJ-028-C-0023 driven by accused and Jaggu, Subhash @Bassi, Rameshwar @Beechla were the witnesses to the accident, the accused has killed the deceased due to enmity. The charge-sheet was filed under Section 302 IPC and the charges were accordingly framed. The prosecution examined fifteen witnesses and exhibited thirteen documents. In the statement under Section 313 Cr.P.C., it was stated to be case of false implication. In defence, one witness was examined and ten documents were exhibited.

3. Learned Public Prosecutor submits that PW-4 Ram Singh proved the incidents of 03.03.1995 and 12.03.1995. PW-5 Adarsh Saxena not only proved two incidents of 03.03.1995 and

12.03.1995 but was also an eye-witness to the accident. It is further argued that PW-10 Rameshwar Singh, PW-11 Ranjeet [2025:RJ-JP:30060-DB] (3 of 11) [CRLA-332/2002] Singh @Jaggu had witnessed the accident and testified that accused had killed the deceased. The evidence was not properly considered and trial Court erred in acquitting the accused under Section 302 IPC.

4. Learned counsel for the accused submits that the view taken by the trial Court is plausible one. The prosecution failed to prove that the jeep at the time of incident was being driven by the accused. It is argued that the eye-witnesses were planted witnesses.

5. Heard learned counsel for the parties and perused the record with their able assistance.

6. The complaint filed by Sudharshan Bhatia on 12.03.1995 was against an unknown person. In an application given on

13.03.1995, five persons- Bhanwarlal Nai, Dalveer Singh, Adarsh Saxena, Harish Sharma and Ram Singh were named to have witnessed the incidents of 3rd and 12th March, 1995. Further Jagveer @Jaggu, Subhash Chand @Basi and Rameshwar Singh @Bichla were claimed to be eye-witnesses to the accident.

7. As per the prosecution, there was enmity between the accused and the deceased due to incidents that occurred on

03.03.1995 and 12.03.1995 and the accused had hit the deceased with a jeep with an intention to kill. Out of five witnesses to the incident of 12.03.1995, PW-1 Bhanwar Lal and PW-3 Harish Sharma were declared hostile.

7.1. PW-2 Dalveer Singh testified that incidents took place between the deceased on 03.03.1995 and 12.03.1995 and the accused. Further that complainant was told about these incidents [2025:RJ-JP:30060-DB] (4 of 11) [CRLA-332/2002] after the cremation of the deceased. To similar effect was the statement of PW-4 Ram Singh.

8. These witnesses were not found reliable by the trial Court being from the same locality and PW-4 Ram Singh was the childhood friend of the deceased. It would be important to note that these two witnesses had not seen the accident but were produced to prove enmity between the accused and deceased.

9. PW-5 Adarsh Saxena named by the complainant as a witness to the incidents of 03.03.1995 and 12.03.1995 but in his deposition he stated to have witnessed the accident. The reliability of this witness was rightly found to be doubtful by the trial Court. As per statement of PW-5 Adarsh Saxena, he along with three- four persons sitting at Vishwakarma Hotel with deceased and accused went to the house of the deceased after the accident, but it is important to note that they were not named in the complaint filed on 12.03.1995. It was taken note that PW-5 Adarsh Saxena was friend of the deceased, an Advocate by profession, involved in more than twenty five criminal cases, yet had not reported the accident to the police.

10. Another angle is that PW-5 Adarsh Saxena claimed to be an eye-witness to the accident and met the complainant after accident, but was not named in an application given by complainant on 13.03.1995. The testimony of PW-5 Adarsh Saxena was at variance with the deposition of PW-8 Sudarshan Bhatia (complainant). As per the PW-8 Sudarshan Bhatia, he was first to reach at spot of accident whereas, PW-5 Adarsh Saxena never mentioned that Sudarshan Bhatia was there at the spot of accident. [2025:RJ-JP:30060-DB] (5 of 11) [CRLA-332/2002]

11. The reliance of the prosecution on testimony of PW-5 Adarsh Saxena to prove that the accused was driving the jeep at the time of incident was dented by variations in the statements of PW-5 Adarsh Saxena, PW-11 Ranjeet Singh @ Jaggu and PW-12 Subhash Chand Sharma. PW-5 Adarsh Saxena stated that he along with others tried to stop the jeep but the accused fled away threatening that they have seen the result of having enmity with the accused. On the other hand PW-11 Ranjeet Singh @Jaggu an eye-witness to the incident said that the accused fled away after the incident and he could not hear what he was saying. Further that by the time they reached the spot the jeep had travelled fifteen to twenty feet and was not remembering the registration number of the jeep. PW-12 Subhash Chand Sharma stated that by the time he reached the spot where the deceased was hit, the jeep had reached Kotwali which was two hundred to three hundred feet away from the spot.

12. It cannot be lost sight of that the accident took place at around 9:00 PM on 12.03.1995 and as per statement of PW-11 Ranjeet Singh @Jaggu and PW-12 Subhash Chand Sharma by time they reached the spot where the deceased was hit, the jeep had gone ahead from the spot. The factum that these witnesses had seen the accused driving the jeep is clouded by doubt.

13. PW-8 Sudarshan Bhatia (complainant) was not an eye witness to the accident. It was stated that he was following the deceased with a time difference of two to five minutes. The complainant had seen rashly and negligently driven jeep near the cinema. The complainant had neither seen the driver nor noted the registration number of the vehicle. As per the statement, the [2025:RJ-JP:30060-DB] (6 of 11) [CRLA-332/2002] complainant was first one to reach the spot of the incident but this statement is at variance with the statement of all other witnesses. Complainant was also not witness to the incidents that occurred on 03.03.1995 and 12.03.1995 and had acted upon hearsay.

14. PW-10 Rameshwar Singh was named as an eye witness in an application given on 13.03.1995, albeit supported the case of the prosecution but stated that the statement was recorded by the Police after a gap of eight days. PW-10 demolished the claim of the complainant of having reached the spot at first instance and stated that he had not met Sudarshan Bhatia at the spot of the accident. PW-10 Rameshwar Singh faltered in cross-examination, stated that he neither met complainant nor told about the accident or earlier incidents to the complainant whereas, in an application dated 13.03.1995, the complainant claimed that PW-10 Rameshwar Singh had told him about the incidents and accident.

15. PW-11 Ranjeet Singh @Jaggu was not found reliable witness belonging to the same locality. He was not remembering the registration number of the vehicle or the colour of the jeep. PW-11 Ranjeet Singh @Jaggu inspite of having witnessed the accident and living in the same locality had neither informed the complainant about the accident nor went to the house of the deceased.

16. PW-12 Subhash Chand Sharma was also from the locality where the deceased was residing. The witness was not remembering the RC number of the jeep and stated to have inform the mother of the deceased about the accident but was not named in complaint given on 12.03.1995. [2025:RJ-JP:30060-DB] (7 of 11) [CRLA-332/2002]

17. Two Investigating Officers (I.O.) were examined by the prosecution to prove the involvement of the jeep in the accident. Notice under Section 133 of Motor Vehicles Act, 1988 (for brevity ‘the Act’) was served upon the owner of the jeep exhibited as P-12 as also the reply filed that on the fateful day the jeep was being driven by accused. This evidence does not enhance the case of the prosecution for the reason that even if involvement of the jeep is proved yet for conviction under IPC, it has to be proved that the jeep was driven by the accused at the time of the accident.

18. It would not be out of place to mention that owner of the jeep DW-1 Ramesh Jangid when stepped into the witness box retracted from reply filed and denied the involvement of the jeep in the accident.

19. The trial Court took into account that all the witnesses claiming to be eye witnesses were known to the deceased and his brother, surprisingly enough none tried to pick him or take him to the hospital after the accident. No one came forward to report the matter to the Police and as per their statements, they came to know about the death of the deceased on the next day.

20. It was also noted that PW-5 Adarsh Saxena, PW-10 Rameshwar Singh and PW-11 Ranjeet Singh @ Jaggu were Advocates by profession yet chose not to report the accident to the Police.

21. The scope of interference in the appeal against the judgment of acquittal is enunciated by the Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka reported in [(2024) 8 SCC 149] held:- [2025:RJ-JP:30060-DB] (8 of 11) [CRLA-332/2002] “40. Further, in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 Cr.PC as follows: “8. xxx xxx xxx 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity; [2025:RJ-JP:30060-DB] (9 of 11) [CRLA-332/2002]

41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

22. The view taken by the trial Court after considering the facts and appreciating the evidence is plausible one, suffers from no legal or factual error much less perversity calling for interference by this Court.

23. The appeal is dismissed. In S.B. Criminal Appeal No. 739/2001:-

1. This appeal is preferred by the accused - Naresh S/o Babulal against the judgment dated 19.09.2001 passed by the Additional Sessions Judge (Fast Track) No.1, Bundi in Sessions case No.27/2001, convicting the accused-appellant under Section 304-A IPC and sentenced two years rigorous imprisonment with a fine of Rs.10,000/- in default of payment of fine, to further undergo three months rigorous imprisonment.

2. The counsel for the accused contends that the prosecution failed to prove the involvement of the accused in the accident. In alternate, it is argued that the accused has undergone more than four months incarceration and sentence be reduced to undergone.

3. Learned Public Prosecutor submits that the accident was witnessed by PW-5 Adarsh Saxena, PW-10 Rameshwar Singh, PW-11 Ranjeet Singh @ Jaggu and PW-12 Subhash Chand Sharma and the accused was rightly convicted. [2025:RJ-JP:30060-DB] (10 of 11) [CRLA-332/2002]

4. The trial Court while acquitting accused under Section 302 extended benefit of doubt to the accused that even if jeep was involved in accident but the prosecution failed to prove beyond reasonable doubt that the accused was driving the jeep at the time of the accident.

5. It is further noted that the conviction was done mainly relying upon fact that the involvement of the jeep in accident was proved by the prosecution by producing mechanical report (Ex.11) and the reply to the notice under Section 133 of the Act (Ex.12) whereas, it has not been considered that involvement of the vehicle in itself shall not be sufficient for conviction of the accused. Moreso that the reply to notice u/s 133 was retracted by DW-1 Ramesh Jangid while deposing before the trial Court. The involvement of the vehicle and the accused in the accident was itself denied by the owner of the vehicle.

6. The judgment of acquittal under Section 302 IPC has been upheld by us, in such circumstances the benefit of the doubt is to be extended to the accused for conviction u/s 304-A IPC.

7. The judgment of conviction and order of sentence are set aside. The appeal is allowed.

8. Keeping in view the provisions of Section 481 BNSS, appellant Naresh S/o Babulal is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- and surety bond of the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months with the stipulation [2025:RJ-JP:30060-DB] (11 of 11) [CRLA-332/2002] that in the event of filing of Special Leave Petition against this judgment or on grant of leave, appellant Naresh on receipt of notice thereof, shall appear before the Supreme Court. (BALJINDER SINGH SANDHU),J (AVNEESH JHINGAN),J Chandan/Danish/27-28 Reportable: Yes