State of Rajasthan Through PP v. For

Judgment

1. Instant revision petition is preferred by petitioners-accused Inshad Ali aggrieved from dismissal of criminal appeal No. 83/2002 on 09.02.2005 passed by learned Sessions Judge, Jaipur District Jaipur whereby the judgment of conviction and sentence dated 18.09.2002 in criminal case No. 695/1998 (141/86) passed

by learned Judicial Magistrate, First Class No.5, Jaipur District Jaipur was affirmed.

2. Learned counsel for appellant while placing reliance upon grounds of revision submitted that in any accidental case, it is necessary that the rash and negligent act of driver of offending vehicle must be established beyond reasonable doubt. He also submitted that the witness has to identify the person who was driving the offending vehicle and also depose about factum of rash and negligent driving of said driver which resulted into injuries or [2025:RJ-JP:23019] (2 of 8) [CRLR-120/2005] death. He further referred the facts of the case and submitted that the prosecution has examined three witnesses PW-3 Mukesh, PW- 4 Hanuman Sahay and PW-5.Ganga Ram Saini as an eye witness but PW-4 and PW-5 were not present at the spot. He further submitted that PW-3 Mukesh was traveling in offending car and as per his deposition, the accident is not result of rash and negligent driving by petitioner. He also submitted that the facts of the case clearly indicate that deceased Goma Devi all of sudden came on road with her child which resulted into death of Goma Devi. He further submitted that the injured child witness was not produced by prosecution and the best evidence available with prosecution was withheld. He further referred the evidence of Investigating Officer PW-12 Karan Singh and submitted that the site plan is not prepared correctly and due to sudden crossing of road by deceased, resulted into said accident. At last, he submitted that this petitioner is not responsible for the incident and he is facing the agony of trial and criminal proceedings since 1986, so a lenient approach be adopted against him either by granting probation or releasing him on sentence already undergone by him.

3. Aforesaid contentions were opposed by learned Public Prosecutor.

4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.

5. The facts giving rise to the instant revision petition in brief are that Panchu Ram S/o Bhola PW-2 has lodged a report Ex. P-3 on 02.06.1986 at 2.00 P.M. for accident of his wife and minor son from Ambassador Car RST-1085 which resulted into death of his wife Goma Devi. On basis of report, FIR No. 113/1986 was [2025:RJ-JP:23019] (3 of 8) [CRLR-120/2005] registered at Police Station Aamer, District Jaipur. After investigation, police has filed a charge-sheet against the petitioner-accused under Sections 279, 337, 338 and 304-A IPC.

6. During trial, the prosecution has examined 12 witnesses and exhibited 15 documents. The accused was examined under Section 313 Cr.P.C. and not submitted any defence evidence but exhibited one document Ex. D.1 during cross-examination. On basis of evidence and material on record, the Trial Court has convicted the petitioner-accused under Sections 279, 337, 338 and 304-A IPC and further sentenced him for a period of 6 months, 6 months, 6 months and 2 years with fine respectively.

7. The accused has preferred an appeal before learned Sessions Judge, Jaipur, District Jaipur and same was dismissed on

09.02.2005 affirming the judgment of conviction and sentence passed by the Trial Court

8. A perusal of record also indicate that this petitioner-accused remained absent since 13.05.1989 and was declared as absconder on 10.07.1998, thereafter he was arrested on 15.01.2001 and was released on 18.01.2001.

9. The first question before us is whether the petitioner-accused was driver on date of incident or not? The Trial Court while recording plea on 23.07.1986 has recorded the version of petitioner-accused that he was driving the car. Admittedly, PW-3 Mukesh, an eye-witness traveling in car No. RST-1085 (offending vehicle) mentioned in report Ex.P.3, has stated that petitioner- accused was driving the said car. The owner of the vehicle was examined as PW-8 and he also corroborated that the petitioner was driver at the time of accident and he mentioned name in reply [2025:RJ-JP:23019] (4 of 8) [CRLR-120/2005] to notice Ex. P-7. The evidence on record clearly suggested that this petitioner-accused was driver of the vehicle and there is no doubt about driver of offending vehicle. 10. A rash driving refers an act of driving a vehicle in a reckless or irresponsible manner that endangers human life or is likely to cause injury to any person. The act of rash driving includes the act of over speed, racing, overtaking, ignoring traffic signals, driving in intoxicated state and also in careless manner etc. The prosecution has to establish that:- (i) The accused drive vehicle on any pathway/road, (ii) The vehicle was driven in a rash and negligent manner, (iii) By the act it endangered the human life or caused harm to any person.

11. In case of Ravi Kapur Vs. State of Rajasthan (2012) 9 SCC 284=AIR 2012 SC 2986 Hon’ble Supreme Court has held that rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact that can’t be comprehended or viewed separately. It must be examined in light of the attending circumstances.

12. ‘Negligence’ means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. [2025:RJ-JP:23019] (5 of 8) [CRLR-120/2005] Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when he is driving a vehicle in any thickly populated area.

13. In case of Dalbir Singh vs. State of Haryana (2000) 5 SCC 82, Hon’ble Supreme Court has observed that professional drivers should remind themselves of the general consequences of any movement or laxity or inadvertence while operating a vehicle. It is imperative that they did not take any chance or assume that their reckless driving will not result in an accident or any accident will not lead to loss of human life. Furthermore, driver should not assume that even if death occurs they will not be convicted of those offence or that they will receive lenient sentence. The observation clearly highlights the need for professional drivers who exercise at most caution and responsibility while driving and not causing harm and damage to anyone.

14. When we look the issue of negligence from the evidence on record then it is evident that PW-2 Panchu Ram is not an eye- witness, but PW-3, PW-4 and PW-5 were examined by the prosecution as an eye-witness. Admittedly PW-3 is an eye-witness who was traveling in car as a passenger, and stated that the car was driving in moderate speed and the lady suddenly crossed the highway and the accident was not a result of negligent driving of [2025:RJ-JP:23019] (6 of 8) [CRLR-120/2005] petitioner. As per PW-3, no one came for 15-20 minutes. PW-4 Hanuman and PW-5 Ganga Ram were examined as they have witnessed the incident. When we considered cross-examination of PW-4 and PW-5 then their deposition is about the entire incident and there is no discrepancy or admission which would be sufficient to discard their testimony. When we compare with evidence of PW-3 then only difference is that as per PW-3 the speed of vehicle is 40-50 Kms per hour but as per PW-4 the vehicle was running at fast speed whereas PW-5 has not suggested any speed except that vehicle was driven fast.

15. The Investigating Officer, PW-12 has prepared site plan and his cross-examination suggested that road is a busy highway and the accident occurred on left side of the road. The site plan prepared by PW-12 is exhibited as P-4. When we consider the site plan then the vehicle was approaching from North to South (towards Jaipur) and the place of accident is “Place-A” which is part of pavement. If accident was happened at “Place-A” and deceased (lady) was dragged till “X Place” then it indicate that the vehicle was not stopped just after the incident. The incident is of broad day light around 2.00 P.M. and it is expected from a commercial driver that he would blow a horn while driving a vehicle in densely populated area. The evidence on record clearly suggested that the driver has not noticed the presence of deceased with his son, which resulted into an accident.

16. The evidence of PW-3 only suggest that the speed of vehicle was 40-50 Kms per hour and driver has taken due care and [2025:RJ-JP:23019] (7 of 8) [CRLR-120/2005] precaution while driving a car on highway. Again, it has to be suggested by the driver himself that he has taken all due precautions and not by anybody else. If we presume defence on the basis of cross-examination of witness then again a question on basis of site plan Ex. P-4 is posed before us and same has to be answered specifically that the deceased was on pavement just left side on the road. If she was hit by a car and later she dragged upto “X Place” at least 105 feet from “A Place”, then certainly the driver was not aware about the presence of deceased Goma Devi and her son which indicate that the driver was not driving the vehicle in highly attentive manner. The rash and negligent driving normally refers to endangering human life by driving a vehicle so carelessly wherein the driver has no control.

17. Herein, this case if we presume that speed of vehicle is approximately 40-50 Kms per hour even then it was populated area and the driver has not noticed the presence of deceased, therefore, the duty is casted upon the driver to show all care and precaution to avoid or avert any accident. The petitioner-accused has not explained his version after noticing the presence of deceased and her son either on road or on left side of road.

18. In view of evidence available on record, we cannot discard the evidence of PW-4 and PW-5 even if presuming the evidence of PW-3 to be correct one that none came after accident for 15-20 minutes. The evidence of PW-3 is sufficient to show rash and negligent driving of the petitioner-accused. The evidence of PW-3 has to be seen in light of admission of PW-12 that the place of incident is a busy area and when a place is busy area then it means that it is either populated or having occupied surroundings, [2025:RJ-JP:23019] (8 of 8) [CRLR-120/2005] therefore, considering the material on record, the trial Court and the Appellate Court have not committed any error while convicting petitioner-accused for rash and negligent driving which resulted into death of deceased Goma Devi and also causing simple and grievous injuries to son of complainant PW-2.

19. A perusal of record suggests that this petitioner-accused remained absconded for a long period which resulted into delay in disposal of criminal case. The matter pertains to death of a person and injury to another person. In case of James Vs. State of Karnataka (2024) INSC 1038, Hon’ble Supreme Court has considered an appeal after dismissal of revision petition confirming the conviction under Sections 279 and 304-A IPC and has refused to adopt leniency and observed that it is not a fit case for extending sympathy and taking a lenient view specifically considering that the said lenient act of accused has caused death of one person as well as injury to one other.

20. In view of discussions made hereinabove, the instant revision petition sans merits and liable to be dismissed.

21. Accordingly, instant S.B. Criminal Revision Petition No. 120/2005 is hereby dismissed along with pending application(s), if any. MONU /83 (ASHOK KUMAR JAIN),J