Reyaz Ahmad Mir vs State of J&K & others

This revision petition is directed against the judgement passed by learned Principal Sessions Judge Budgam in appeal no. 03 titled Reyaz Ahmad

Mir vs. State of J&K dated 7th of March 2006 as also against the judgement and order dated 8th July 2005 passed by Judicial Magistrate 1st

Class Charari Sharief.

The petitioner has been convicted by the trial court under section 279 RPC and has been sentenced to undergo imprisonment for three months

and fine of Rs. 500/ has also been imposed. The petitioner has been convicted and sentenced to undergo one year simple imprisonment under

section 338. Sentences have been ordered to run concurrently. The trial court has also imposed fine of Rs. 10,000/ on the petitioner while

convicting and sentencing him under section 429 RPC. The petitioner is aggrieved of the said judgment of the trial court dated 8th July 2005.

The appeal was tiled against the judgment before the learned Principal Sessions Judge Budgam. The learned Principal Session Judge Budgam

vide dated 7th March 2006 maintained the conviction of the petitioner but reduced sentence to a period of three months for commission of offence

under section 279 RPC and has also imposed of Rs. 500/ as fine. The learned Sessions Judge Budgam further convicted and sentenced the

petitioner under section 338 RPC and directed him to undergo imprisonment for a period of six months and a fine of Rs. 500/ was also imposed.

The petitioner was further directed to undergo six months imprisonment for commission of offence under section 429 RPC and fine of Rs. 10,000/

was also imposed on him. It was directed that the period of sentence will run concurrently.

The brief facts of the case are that the petitioner who is driver by profession was driving JKB3454, vehicle Tata Matador. Police Post Pakher

Pora received information that One Abdul Qayoom Teli, and his horse were hit by the vehicle which was driven by the petitioner/accused. The

information was received by the Police post Pakar Pora on 2nd October 2002 and the case was registered in Police Station Charari Sharief under

section 279/338/129 RPC.

The case was investigated and ultimately report under section 173 Cr.P.C was submitted to court of competent jurisdiction, learned Judicial

Magistrate 1st Class Charari Sharief.

The accused pleaded not guilty to the allegations/charges laid against him. The prosecution examined nine witnesses. The learned trial judge

without elaborating and discussing the evidence in the impugned judgment convicted and sentenced the petitioner. In the appeal again, the learned

Principal Session Judge has not referred to the evidence recorded during trial of the case and has upheld the conviction of the petitioner but has

reduced the sentence which was imposed by the trial court.

Heard, Learned counsel for the parties. The learned counsel for the petitioner Mr. Ayoub argued that prosecution has miserably failed to prove

guilt against the accused beyond shadow of reasonable doubt. He submitted that it is case of no evidence. The learned AAG, Mr. M.A.Rathore,

was requested by court to show from evidence as to whether the charges made against the accused are proved. Mr. Rathore, AAG, referred to

statement of two prosecuting witnesses Manzoor Ahmad Shah and Abdul Salam Dar. After reading the statements of these prosecuting witnesses

the Ld. AAG fairly conceded that the statement of prosecution witnesses do not inculpate the accused. The two prosecution witnesses have stated

that they reached scene of occurance after accident had taken place. Prosecution witness Abdul Qayoom Teli who sustained injuries has deposed

that while he was moving ahead of horse, he and horse were both hit by the vehicle and in consequence he sustained injuries on his lips, legs and

his one tooth was broken. He has further deposed that horse died on spot. None of the prosecution witnesses have anywhere in their statement

stated that the vehicle was either being driven rashly or negligently. The police has conducted investigation in a routine matter. The prosecution

witness Abdul Qayoom Teli, however, in his statement given before the trial court has deposed that the vehicle was being driven at fast speed.

It will not be safe to convict and sentence a person and deprive him of his liberty on mere assertion that vehicle was driven at fast speed, unless

it is coupled with further assertion that vehicle was being driven either rashly or negligently.

It will be further hazardous to simple guess on a persons allegations that the vehicle being driven at fast speed should also mean that it is being

driven either rashly or negligently. The perception of people differ and cannot be same. A person may assume that vehicle which is being driven at

a speed of 40 KM may be fast speed and for other person even driving vehicle at a speed of 80 KM may not be fast speed. In such

circumstances, it will not be safe to convict a person of the offence charged with and deprive him of his liberty which besides being his birth right is

also constitutional right under Article 21 of Constitution of India. In the facts of this case mere assertion of vehicle being driven at fast speed will

not in law constitute commission of offence with which accused is charged with.

The other prosecuting witness Hassan Dar has stated that he has not seen the vehicle hitting either injured person and the horse. Prosecution

witness Altaf Lone is photographer by profession was brought on spot for taking photographs. Prosecution witness Ab. Salam Dar also exhibits

ignorance about the occurrence.

It is on this evidence the trial court has convicted the accused which conviction is maintained by Appellant court.

I have considered the entire evidence and other documents available on record. The prosecution has failed to prove the guilt against accused

beyond all shadow of doubt. Prosecution has failed prove that accused was driving vehicle either rashly or negligently and has knowingly caused

damage to properly. The impugned judgments are infirm and suffer from illegality and are accordingly setaside. The petitioner/accused is acquitted

of all the charges. Bail bonds stand discharged.