HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR
S.B.Criminal Revision No. 1162 / 2016

Ramveer Singh S/o Shri Dilbagh Singh, by caste Jat, resident of

Saghi, P.S. Rohtak Sadar, District Rohtak (Haryana).

(At present lodged in District Jail, Rajsamand).

----Petitioner
Versus
State of Rajasthan

----Respondent
_____________________________________________________
For Petitioner(s) : Mr. B.L. Choudhary

For Respondent(s) : Mr. R.K. Bohra, Public Prosecutor

_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Order
19/01/2017

1. This revision petition has been preferred on behalf of

the accused petitioner challenging the judgment dated 02.09.2016

passed by Learned Additional Sessions Judge, Rajsamand in

Criminal Appeal No.35/2015 whereby he has upheld the judgment

impugned dated 03.06.2013 passed by learned Judicial

Magistrate, First Class, Devgarh, District Rajsamand and convicted

the accused petitioner for the offence punishable under Sections

279 and 304-A I.P.C. as also under Section 134/187 of Motor

Vehicle Act and sentenced him with simple imprisonment for a

period of six months and imposed fine of Rs.500/- for the offence
 (2 of 10)
[CRLR-1162/2016]

punishable under Section 279 I.P.C. The accused petitioner was

also sentenced for the offence punishable under Section 304-A

I.P.C. with simple imprisonment for two years and a fine of

Rs.1000/-. The petitioner was also sentenced with simple

imprisonment for one month and a fine of Rs.500/- for the offence

punishable under Section 134/187 of Motor Vehicle Act. He was

also directed to serve out additional sentence in default of

payment of fine with 15 days, one month and 15 days

respectively.

2. Briefly stating the relevant facts are that a FIR Ex.P/4 was

lodged by Dilip Singh mentioning that at 4.40 pm on 18.5.2006,

when his nephew Manoj Kumar, aged 11 years was crossing the

road to go to his grand father’s well from the house situated

across the road, one speeding truck bearing registration No.HR-

46-B-3580 dashed him while coming from Bhim. The driver was

driving the vehicle negligently and rashly. Tyre of the truck

crushed Manoj Kumar beneath his waist. He died on the spot.

Driver ran away with the truck. Dilip Singh informed Police

Station Diwer telephonically about number of the truck. Besides

the complainant, Sukhdev Singh, Jhala Ram, Ghanshyam Singh

etc. were also eye witnesses of the accident.

3. After investigation, police submitted a charge-sheet against

the petitioner for the offence punishable under Sections 279 and

304-A I.P.C. and Section 134/186 of Motor Vehicle Act. After

conducting trial, learned trial Court convicted and sentenced the

 (3 of 10)
[CRLR-1162/2016]

accused petitioner as mentioned above vide judgment dated

03.06.2013.

4. The appeal preferred by the petitioner was also dismissed by

learned appellate Court and the conviction and sentence awarded

to the petitioner was upheld vide order impugned dated

02.09.2016.

5. During arguments, learned counsel for the petitioner has

submitted that learned Courts below have convicted the accused

petitioner without any incriminating evidence against him. No eye

witness of the accident has been examined during trial except

complainant PW/7 Dilip Singh. His statement to have seen the

number of truck is also unreliable looking to his statements given

during cross examination. As per other witnesses present on the

scene, Dilip Singh has reached the place of occurrence after the

truck had run away. The petitioner has been implicated in the

case simply on the basis of the reply given by PW/12 Pradeep

Kumar on the notice under Section 133 of Motor Vehicle Act. But

PW/12 Pradeep Kumar has stated during his cross examination

that he did not know who was driving the vehicle at the time of

accident. Learned counsel has further contended that no rashness

and negligence has been proved. As per the site plan Ex.P/3, it is

evidently clear that the truck was being driven on the left side of

the road and the accident took place because the deceased tried

to cross the road without taking any caution to check whether any

vehicle is coming on the road or not. The witnesses had also

 (4 of 10)
[CRLR-1162/2016]

admitted that the accident would have not taken place had the

deceased Manoj seen on the either side of the road to check

whether any vehicle is coming or not. Thus, learned counsel for

the petitioner has submitted that learned trial Courts have passed

the judgment in clear ignorance of facts, which have been

revealed by the witnesses. The evidence has not been properly

appreciated. Hence, the judgments suffer legal infirmity and the

revision is liable to be allowed while setting aside the judgments

impugned.

6. Per contra, learned Public Prosecutor has supported the

reasoning given by learned Courts below. He has submitted that

the driver ran away from the scene of occurrence, so all the

witnesses could not see the registration number of the truck but

the truck was detained just after the accident by Diwer police. The

reply given by the registered owner of the vehicle confirms the

fact that the accused petitioner was driving the vehicle at the time

of accident. It was his duty to avoid accident if some pedestrian

was trying to cross the road. Learned Public Prosecutor has

submitted that the site plan clearly shows that the accident had

taken place only because of the negligence and rashness of the

driver. He has further submitted that both the Courts below have

given the concurrent finding and there is no reason to set aside

that finding. Hence, the revision is liable to be dismissed.

7. I have given my thoughtful consideration to the rival

contentions raised by both the sides and have also perused the
 (5 of 10)
[CRLR-1162/2016]

evidence, ocular as well as documentary, available on record.

8. It is true that both the Courts below have arrived at a

concurrent finding about the guilt of the accused petitioner but in

view of the contentions raised by learned counsel for the

petitioner, it is bounden duty of this court to analyze whether the

evidence available on record has been properly and correctly

appreciated or not and also to check whether the finding is

perverse in the light of such evidence ?

9. On close scrutiny of the judgment passed by learned

appellate Court, it comes out that on the basis of the evidence of

prosecution witnesses and reply to the notice Ex.P/5 given under

Section 133 of Motor Vehicle Act, learned Court has come to the

conclusion that accused petitioner Ramveer Singh was driving the

vehicle at the time of accident. As per FIR Ex.P/4 besides

complainant Dilip Singh, Sukhdev Singh, Jhala Ram and

Ghanshyam Singh were eye witnesses of accident. But Jhala Ram

and Ghanshyam Singh have not been examined by the

prosecution. As per PW-9 Sukhdev Singh, only he and Jhala Ram

was standing near the place of accident, which was about 100 ft.

away from them. Though he has stated that a speeding truck

came from the side of Bhim and dashed Manoj Kumar, who died

but he has also stated that he could not see the registration

number of the truck. Neither name of the driver was known to

him. He has also stated in his cross examination that complainant

Dilip Singh was further 100 ft. away from them. He has
 (6 of 10)
[CRLR-1162/2016]

specifically stated that the truck had run away after the accident,

when Dilip Singh arrived on the spot. He has also stated that Dilip

Singh came out of his house on being called by them. Looking to

this statement, it cannot be relied that Dilip Singh could have seen

the registration number of the truck. PW-7 Dilip Singh has also

admitted during his cross examination that at the time of accident,

he was on the roof top of his house and also stated that his house

was at a distance of 10 ft. from the spot of accident. He has also

stated that he saw the number of the truck from behind while

standing at roof top of his house. But his statement appears

unreliable in light of the statement given by PW/9 Sukhdev Singh

as he could reach the spot of accident only after the truck had run

away.

10. Investigating Officer PW/16 Bhanwar Singh has stated that

on the telephonic information about the accident, he trapped truck

No.HR-46-B-3580 in front of police station Diver. It is worth

noting that no ‘rojnaamcha’ has been produced in the prosecution

evidence wherein the telephonic information about the number of

the truck was recorded. He has also admitted in his cross

examination that complainant had not mentioned the truck

number in report Ex.P/1. On close scrutiny of statements of other

prosecution witnesses, it clearly comes out that none of them

have stated that they could see the registration number of the

truck, which had run over deceased Manoj Kumar. Thus, the

clinching evidence in regard to the information about the

registration number of the truck is completely missing.

 (7 of 10)
[CRLR-1162/2016]

11. Other aspect which had been taken into consideration by the

Courts below to arrive at the conclusion that the accused

petitioner was driving the truck is in respect of the notice Ex.P/5.

This has been heavily relied upon by learned lower appellate

Court. But on scrutiny of statement of PW-12 Pradeep Kumar,

who is alleged to be the registered owner of the truck, it comes

out that during his cross examination, he has admitted that the

reply ‘A’ to ‘B’ written on Ex.P/5 is not his hand written. He has

also stated that he had sold the truck to one Virendra in the year

2004 and thereafter, only Virendra was looking after the vehicle.

PW/12 has also categorically stated that he did not know as to

who was driving the vehicle at the time of accident. Taking these

facts into account, the conclusion arrived at by learned lower

appellate Court on the basis of Ex.P/5 cannot be treated to be

convincing and reliable. In view of both the above counts on

which conclusion has been drawn by the learned lower Court that

accused petitioner Ramveer Singh was driving the vehicle at the

time of accident is not found to be correct in the light of ocular as

well as documentary evidence. Hence, so far as offence under

Section 134/187 of Motor Vehicle Act is concerned, liability

therefor, cannot be fasten upon the accused petitioner as this fact

has not been proved that he was the person who caused the

accident.

12. So far as the factum of negligence and rashness of the truck

driver is concerned, most relevant evidence is the site plan Ex.P/3

 (8 of 10)
[CRLR-1162/2016]

prepared during the investigation. The only ‘motbir’ witness of

Ex.P/3, who has been examined, is PW-5 Fateh Singh. He has

admitted in his cross-examination that there was neither any

vehicle nor the dead body on the spot when site plan was

prepared. Even this fact has also been admitted by Investigating

Officer PW/16 that dead body and the truck had been removed

when site plan was prepared by him on the next day. It thus

appears that only formality of preparing the site plan was

observed but the relevant facts which were required to be

observed were not available on the scene when site plan Ex.P/3

was prepared.

13. Even then, if Ex.P/3 is taken into consideration, it is clear on

its perusal that the point of accident, which is marked as ‘A’ in

Ex.P/3 is the place situated on the left side from the median line

of road – 4 ft. inside. So, at the time of accident, the truck was

being driven on its proper side and it had not caused the accident

while going to the wrong side. Further, it has also been

mentioned in Ex.P/3 that there is blackening signs in the length of

12 ft on the road, which were caused by applying the brakes. This

fact shows that the driver tried to avoid the accident by applying

the brakes on seeing somebody trying to cross the road. It is also

important to note that as per complainant PW-7, speed of the

truck was 50-60 kilometer at the time of accident. This speed

while driving on highway cannot be taken to be excessive proving

the recklessness of the driver. These facts have been completely

lost sight by learned lower appellate Court. On the contrary, it has

 (9 of 10)
[CRLR-1162/2016]

been inferred that the truck driver had caused the accident while

going to the wrong side without reducing the speed and blowing

horn. But no such evidence is available on record to substantiate

this inference.

14. Though it has been admitted by almost all the witnesses

during cross examination that the deceased was negligent while

crossing the road in not taking care to check whether any vehicle

is approaching or not. But this aspect had not been taken into

consideration by the Courts below. It cannot be said that it was

sole duty of the pedestrian to check about the vehicle while

crossing road. However, this Court is of the view that since the

truck driver took all the precautions and tried to avoid the

accident even then, if the accident had taken place, criminal

liability cannot be fasten upon the truck driver in view of the

negligence of the deceased.

15. Resultantly, there is no hesitation in concluding that learned

Courts below have arrived at the conclusion of holding the accused

petitioner liable for the accident without properly appreciating the

evidence available on record and thus, their conclusion is found to

be perverse and cannot be sustained. In view of above, the

revision petition deserves to be allowed and is accordingly

allowed. The judgments dated 02.09.2016 and 03.06.2013

passed by Courts below regarding conviction and sentence of the

accused petitioner for the offence punishable under Sections 279

and 304 (A) I.P.C and Section 134/187 of Motor Vehicle Act are
 (10 of 10)
[CRLR-1162/2016]

quashed and set aside. The petitioner may be released forthwith,

if not required in any other case.

16. A copy of this order be sent to the trial Court for information

and necessary action.

(DEEPAK MAHESHWARI), J.

Arun/PS