State of Rajasthan through its P.P v. For

Judgment

1. This criminal revision petition has been preferred under Sections 397 and 401 of the Cr.P.C. against the order dated

03.09.2004, passed by the Additional District and Sessions Judge, Ramganj Mandi, District Kota, in Criminal Appeal No.16/2002, whereby the order dated 01.10.2002, passed by the Chief Judicial

Magistrate, Ramganj Mandi, District Kota, was affirmed, and the accused-petitioner was convicted for the offences under Sections 279 and 304-A of the IPC and was sentenced to six months' simple imprisonment and two years' simple imprisonment, respectively, along with a fine of Rs. 1,000/- each.

2. It is contended by the learned counsel for the petitioner that both the Courts below have erred in appreciating the evidence adduced by the prosecution. It is also contended that the entire case of the prosecution rests upon two eye-witnesses, namely PW- [2025:RJ-JP:21501] (2 of 8) [CRLR-851/2004] 3 Pankaj and PW-4 Sunil Soni. The learned trial Court, while convicting the petitioner, observed as under:— “bl laca/k esa xokg ihMCY;w 3 o 4 us Li"V :i ls dgk gS fd os tgka fØdsV [ksy jgs Fks ogka dksbZ jkLrk ugha Fkk vkSj ogka ij fcuk gkWuZ ctk;s VªSDVj MªkbZoj txnh'k HkkV VªSDVj dks rst xfr ,oa ykijokgh ls pykrk gqvk yk;k vkSj lqfuy ds VDdj ekj nh] ftlls lqfuy vkxs ds ifg;s ds uhps nc x;k vkSj mldh vLirky ys tkrs le; jkLrs esa eqR;q gks xbZA” It is argued by the counsel for the petitioner that the said conclusion arrived at by the learned trial Court is in contrast to the evidence available on record. The witnesses PW-3 Pankaj and PW-4 Sunil Soni, in their examination-in-chief stated that the tractor came very speedily and struck the deceased. However, PW.3 Pankaj, in the cross-examination has clearly denied the fact that he saw the occurrence. Further, in the cross-examination PW.3 Pankaj has also stated that the alleged accident took place in a public way, therefore, the conclusion of the trial Court is contrary to the material placed on record. The petitioner has also taken specific plea in his statement recorded under Section 313 of the Cr.P.C., that the accident occurred suddenly and the deceased himself collided with the tractor, while playing cricket. It is also contended that the general principle of criminal trial clearly establishes that the prosecution has to prove the case beyond reasonable doubt and in the present case there is a strong possibility that accident occurred due to sudden collusion of the deceased with the tractor while playing cricket and therefore the prosecution has failed to establish the fact that the petitioner was driving the tractor rashly and negligently. It is also vehemently argued that the material eye-witnesses namely, PW-5 Ghanshyam, [2025:RJ-JP:21501] (3 of 8) [CRLR-851/2004] PW-6 Raju and PW-7 Rajesh have not supported the prosecution story, rather admitted that the accident occurred suddenly as the deceased came running in front of the truck and collided. It is an admitted fact that the accident occurred when deceased Sunil and other witnesses were playing cricket at the place of occurrence, therefore, there is no reason to disbelieve the testimony of the hostile witnesses. In support of the same, learned counsel for the petitioner has relied on the judgments passed by the Apex Court in the case of State through PS Lodhi Colony Vs. Sanjeev Nanda, (2012) 8 SCC 450, wherein while placing reliance upon the judgment of State of U.P. Vs. Ramesh Mishra and Anr., AIR 1996 SC 2766 and K. Anbazhagan Vs. Superintendent of Police and Anr., AIR 2004 SC 524, the Apex Court held that “… if a court finds that in the process the credit of the witness has not been completely shaken, it may after reading and considering the evidence of the witness as a whole, with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it…” It is contended by the counsel for the petitioner that in the instant case all the material witnesses in clear and unequivocal terms have testified that the accident occurred suddenly and there exists no inconsistency or reason to disbelieve their part in which they have accepted the defense version. The learned counsel for the petitioner has also placed reliance upon the judgment passed by the Apex Court in the matter of Suleman Vs. State of Maharashtra AIR 1968 829, wherein the Apex Court while referring to the judgment of Emperor v. Omkar Rampratap [4 BLR 679], observed that “to impose criminal liability under Section [2025:RJ-JP:21501] (4 of 8) [CRLR-851/2004] 304-A of the Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have been the cause sine qua non.” The learned counsel for the petitioner has also placed reliance upon the judgment of State of Arunachal Pradesh Vs. Ramchandra Rabidas @ Ratan Rabidas & Anr., (2019) 10 SCC 75, wherein the Apex Court has held at para 5.12 that “Negligence and rashness are essential elements of Section 304-A. The three ingredients of Section 304-A, which are required to be proved are : (1) the death of a human being; (2) the accused caused the death; and (3) the death was caused by the doing of a rash or negligent Act, though it did not amount to culpable homicide of either description.” It is further prayed by the counsel for the petitioner that the petitioner is now 75 years old and has already remained in custody for 21 days. It would be unduly harsh to send the petitioner, a 75-year-old man, to custody after a lapse of almost 25 years.

4. Learned Public Prosecutor justifies the orders passed by the learned trial Court as well as the learned Appellate Court.

5. Heard and perused the material available on record.

6. The prosecution case rests mainly upon the statements of PW-3 Pankaj and PW-4 Sunil Soni. The learned trial Court relied upon both the witnesses and found the petitioner to be guilty of committing the offence under Sections 279 and 304-A of IPC. However, the learned Appellate Court after appreciating the evidence of PW-4 Sunil Soni coupled with the statement of PW-9 [2025:RJ-JP:21501] (5 of 8) [CRLR-851/2004] Shankar Singh, the Investigating Officer who prepared the site plan (Exhibit-P10), concluded that the statement of PW.4 Sunil Soni cannot be disbelieved. It is relevant to mention here that the revisional scope of the High Court is very limited and the Court while exercising the power of revision cannot re-appreciate the evidence as an Appellate Court, until and unless there is glaring illegality or palpability in the order or where the Court below has passed the order by going beyond the record. In the present case, the prosecution has come forward with a specific version that the petitioner was driving his tractor rashly and negligently and has caused the death of deceased- Sunil Kumar. It is also alleged in the prosecution story that the front wheel of the tractor overran the deceased body, which caused fatal injury to deceased Sunil Kumar. The prosecution also stated that at the time of incident, the deceased was playing with other boys in a ground and the petitioner while driving the tractor speedily overrun the tractor on the deceased resulting in his death. The prosecution story states that the accidents occurred in the playground and not on a public way, and despite knowing the fact that the boys were playing in the playground, the petitioner drove the vehicle rashly and negligently resulting in the death of the deceased. The witness PW-3 Pankaj has not supported the prosecution story and his version in the cross-examination itself is enough to disbelieve his testimony as he stated that he has not seen the accident and the accident took place in a public way. However, the witness PW-4 Sunil Soni in his examination-in-chief has corroborated the prosecution story and clearly stated that the petitioner was driving the said tractor and at the time of incident, the deceased and [2025:RJ-JP:21501] (6 of 8) [CRLR-851/2004] other boys namely; Pankaj, Raju, Ghanshyam along with him were playing cricket. The witness PW-4 has also stated that the petitioner was driving the tractor speedily and came into the playground, which is not the way for driving the vehicle and the driver hit Sunil Kumar from the front wheel of the tractor. The defense version, which has been reflected from the statement of PW-5 Ghanshyam, PW-6 Raju and PW-7 Rajesh and in the statement of the petitioner rendered under Section 313 of Cr.P.C., that the accident occurred suddenly as the deceased came running over while playing cricket and collided with the tractor, however, the same defense were not put to the material witness i.e. PW.4 Sunil Soni and seems to be after throught. The testimony of witness PW-4 Sunil Soni who narrated the entire story regarding occurrence of the accident, remained unshaken. The defense has not been consistent rather inconsistent in their version as it seems that the story of defense has been developed during the cross- examination of PW-5 Ghanshyam, PW-6 Raju and PW-7 Rajesh. The statement of witness PW-9 Shankar Singh, who is the Investigating Officer has also clearly stated that the accident occurred at the playground and not in a public way.

7. As far as petitioner alternative prayer releasing the petitioner for the period already undergone is concerned first of all the custody of the petitioner for the said offence, is only 21 days, which is certainly not in proportion to the nature of offence committed by the petitioner. Further, The Hon’ble Apex Court in the matter of State of Punjab Vs. Dil Bahadur rendered in Criminal Appeal No.844/2023 SLP (Criminal) No.2984 of [2025:RJ-JP:21501] (7 of 8) [CRLR-851/2004] 2018 dated 28.03.2023 after referring the judgments of State of M.P. Vs. Bablu 2014 (9) SCC 281 held as under:- “the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative The factor of sentence with gravity of crime. punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.” [Emphasis Supplied] The Hon’ble Apex Court in the matter of State of Punjab Vs. Dil Bahadur set aside the judgment of Hon’ble Punjab and Haryana High Court whereby, Hon’ble High Court upheld the conviction of respondent under Section 304A of the IPC. However, has reduced the sentence from two years to eight months, subject to prior deposit of Rs.25,000/- towards compensation to be paid to family/legal heirs of the deceased. The Hon’ble Apex Court in the above matter, restored the sentence of two years and fine imposed by the trial Courts below.

8. Considering the facts of the present case, I am of the view that sentence awarded to accused-petitioner under Sections 279 and 304A of the IPC commensurate with the offence committed and there is no cogent reasons for the Court to reduce the sentence of the accused-petitioner.

9. In view of the above, the criminal revision petition is dismissed. The accused-petitioner is on bail. His bail bonds and [2025:RJ-JP:21501] (8 of 8) [CRLR-851/2004] sureties are forfeited. He is directed to surrender before the concerned trial Court and the trial Court is directed to serve upon the remaining sentence to the petitioner. All pending applications are disposed of. Record of the learned Courts below be sent back forthwith. Ashwani Kr Srivastava /-2 (PRAVEER BHATNAGAR),J