State vs Inder Singh

This appeal has been preferred u/s 417 of the Cr. P. C. against the judgment and order of acquittal to have been passed by the learned Sub

Registrar/Judicial Magistrate First Class, Jammu, on 31 3.1976, by which the respondent ""hereinreferred to as the accused"" charged for an offence

U/S 304A and 337 RPC on his trial, was acquitted.

According to the prosecution, on 13 5.1973 at about 8 PM the accused while driving his tempo bearing No: 4699/JK.N had gene a furlong ahead

from Military Hospital, Satwari towards Chatha, when it dashed against a private car bearing registration No : 7566/WBA which was driven by

the deceased, and after its collision with the car, it had turned turtle. The driver of the car had been crushed inside his vehicle and there were two

other persons sitting in toe back seat of the said car, who also sustained injuries on their person, due to the accident. The injuted persons were

taken out from the said car with great difficulty, and the complainant carried them in a taxi to the hospital, and the driver of the car Vijay Kumar

who had been seriously injured succumbed to his injuries on his way to the hospital. The incident was noticed by Sat Paul Sharma ASI and

Ghulam Nabi constable, who were on a usual round and were returning to the Police Station, when the occurrence took place.

After the registration of the case, the accused was tried in the Court of Sub Registrar judicial Magistrate First Class, Jammu, who examined

Ashwani Kumar, Bal Krishan, Mulkh Raj sharma, Vidya Parkash, Omi Chand Sharma, Chajju Ram, Dr. R. N. Sichdev, Suresh Bahal, Amar

Nath, Sat Paul ASI, Dr. Yogeshwar Mengi, Bal Krishan Koul and Kasturi Lal ASI as witnesses in the case. Three witnesses Parshotam Lal,

Sardar Sant Singh and Nardev Singh have been examined as witnesses in defence by the accused.

On the trial of the accused, the learned Trial Magistrate formed an opinion that the prosecution did not prove its case against the accused, and, as

such, acquitted the accused.

The said order of acquittal has been assailed by way of this acquittal appeal on the ground that the Court below has not appreciated the evidence

led by the prosecution in its right perspective, when, on the evidence of the prosecution and the defence evidence, occurrence was proved and the

case was not justified in not believing the statements of Ashwani Kumar and Bal Krishen being the eye witnesses to the occurrence, who were

impartial and, therefore, were not supposed to make false statements against the accused. The learned trial court has rejected their statements

merely on the basis of hypothesis, which bad nothing to do with the reality. The human conduct and course of events could not be channelized, as

has been presumed by the trial court while rejecting the evidence of these witnesses. Their evidence was most natural, which should have been

relied upon by the Court below. The trial court has not considered the circumstances under which the two injured eye witnesses could not be

produced in the case; and it was obligatory on the part of the court below to have secured the presence of those witnesses, if it so felt that their

statements were essential for determintion of guilt of the accused.

Heard Mr. P. R. Sharma, AAG for the appellant/State and Mr. Joginder Singh for the accused; also hid a thoughtful consideration over the record

on the file.

It is the admitted case of the parties that the deceased was killed in a motor accident with tempo No: 4699/JKN driven by the accused, which

collided with a private car driven by the deceased, as a result of which, he was crushed inside his vehicle and he succumbed to the injuries so

sustained by him on his way to the hospital. Even, the accused has not denied the fact that the deceased was killed in such an accident, which,

according to him took place while the deceased brought his vehicle on the wrong side of the road, and dashed against tempo driven by the

accused.

It was argued by the learned defence counsel that there was a presumption of innocence in favour of the accused, and such a presumption was

strengthened by the fact that he was acquitted by the trial Magistrate. The right of the accused to the benefit of doubt continues right up to the last

stage. The High Court is to be slow in disturbing a finding of the fact based upon the appreciation of evidence recorded by the trial court. In this

regard, it was argued that the learned trial Magistrate after considering the prosecution evidence and the defence evidence, came to the conclusion

that the prosecution has not proved beyond doubt that the accused had committed an offence as envisaged under the provisions of Section 304A

and 337 RFC.

After duly considering the arguments advanced on either side, and having the presumption of innocence in favour of the accused in mind, and also

perusing the relevant law on the subject, I am of the view, that there was sufficient evidence in favour of the prosecution, which was trust worthy

and conclusive to prove the charge against the accused. The trial court had to see as to whether any evidence produced on behalf of the

prosecution in support of the case, was legal or relevant ? It was not the quantity but the quality of the evidence that was to be considered, and the

trial court had to evaluate and consider the same on its reasonability and could not by any stretch of imagination, declare such evidence of bonafide

people, as unreliable. I have considered the evidence of the two vital prosecution witnesses Ashwani Kumar and Bal Krishan, who do not bear

any enmity or grudge against the accused. They were spontaneous to say that PW Ashwani Kumar provided a lift to Bal Krishan near police

station, Satwati, and white doing so, car No: 7566/WBA driven by the deceased Vijay Kumar, which was plying at a speed of 15/20 KMs per

hour, crossed his car and it had not covered a distance of more than 100 yards that they found that a tempo driven by the accused rashly and

negligently at a speed of 60/70 KMs per hour went to the wrong side of the road and dashed against the car of the deceased. His car was

completely damaged and the deceased was crushed inside the car, and the tempo as a result of collision went about 15/20 yards ahead and turned

turtle. According to PW Bal Krishan, the driver of the tempo dashed against the blue car, and the said tempo was driven by the accused.

According to him, the accused was coming towards Chatha when the accident took place. Many persons came on the spot and brought down the

injured persons from the blue car and carried them to the hospital for treatment. According to him, the accident hid taken place, for the accused

was driving his vehicle at a fast speed, and after the accident, both the vehicles turned turtle

I fail lo understand, as to how the evidence of These two independent witnesses has been disbeheved by the trial court, when the occurrence was

vividly seen by these two people, who were on the road side when such an accident took place. It is in the prosecution evidence that both S. P.

Sharma ASI and Ghulam Nabi Constable had seen the occurrence at a little distance, and when they heard a loud sound, they found that the

tempo had collided with a car, and the driver of the car was crushed inside the car. They immediately reached on the spot and found that the

deceased was gasping for breath and, ultimately, he died on the way while being carried to the hospital.

The learned trial court has gone astray from his judicial view to believe that PWs Ashwani Kumar and Bal Krishan were riot trust worthly

witnesses. He did not believe their presence on the spot, for Ashwani Kumar could not explain as to in what connection he was present on the

spot, and as to why the deceased Vijay Kumar, who was known to PW Bal Krishan did not stop his car near the police station to give lift to him.

In that context, he ruled out the presence of PW Ashwani Kumar on the spot, and his going in his car at the relevant point of time from Peer Baba

Satwari towards Jammu. According to the learned trial Magistrate, Vijay Kumar could have definitely stopped to enquire from Ashwani Kumar as

to how he had come the. This is a hypothetic U way in which the learned trial has discussed the eye witness account of these witnesses. H: appears

to have been swtysd away by the evident led by the defence in a manner to drsbelievs the spontaneous and direct evidence of the above

mentioned prosecution witnesses, with regard to the commission of the crime by the accused, who had so negligently driven his vehicle that it

collided in such a manner against the car of the deceased, that it went some yards ahead after its collision with the car, and turned turtle, as a result

of which, the deceased was crushed, who ultimately succumbed to the injuries sustained by him in the accident. The learned trial Magistrate also

disbelieved the prosecution story mainly on the ground that two injured persons Moli and Bal Ram have not been examined by the prosecution, for

at the time the accident took place they were working as labourers which the deceased and they belonged to Madhya Pradesh. The permanent

and proper address was not known to the prosecution. They being the casual labourers, were working with the deceased and, after the accident,

they left for their permanent abode. As their addresses were not known to the prosecution or to the court, therefore, they could not be produced

as witnesses by the prosecution. If the trial Magistrate had felt that their evidence was very much necessary for the just and proper decision of the

case, he was duty bound under the provisions of law, to call for such witnesses on the addresses available with the Court. I am sure that he too

could not call them, for they had not given their permanent addresses to the police, and. at the time the accident took place, they were temporarily

living at Gandhi Nagar, Jammu. There has been no negligence on the part of the prosecution in not examining the said two prosecution witnesses,

who could have definitely stated as to in what manner the accident took place.

The evidence of Ashwani Kumar, Bal Krishan and the two police personnel read with the statement of the Mechanic Baljee Koul, is so much

enormous on the record of the file that from that it positively emanates and is established that, in all the circumstance of the case toe accused was

driving his vehicle in a rash and negligent manner, as a result of which his tempo No : 4699/JK N collided with the car of the deceased, due to

which he was crushed inside his car, which ultimately resulted into his death.

It has been enstablished by the Machanic examined as a prosecution witness in the case that the car No : 7566/WBA against which the accused's

Vehisle collided, bad been completely smashed and, on examination of the tempo, it was found that streering, tyrod and brakes thereof were found

in working order. There was no mechanical defect in the tempo, therefore, in all probabilities within the ordinary reach of human conduct, the

accused caused the accident in a negligent manner, who was supposed to drive his vehicle in such a manner, that would not have endangered the

human life.

It was argued by the learned counsel for the accused that the evidence of the persons who gave statements with regard to the accident requires

close scrutiny in finding out as as to what they actualy say and what may be the result of their imaginative influence. According to him, in the instant

case, apart from the eye witnesses, the only persons who could be considered to be truly capable of satisfactorily explaining as to the

circumstances leading to the accident, were the injured persons, but, as the injured persons have not been produced as witnesses in the case, and

therefore, the bonafides and fairness of the prosecution and also the truthfulness of the version given by the other prosecution witnesses, is at

challenge. The very fact the driver of the tempo has collided with a small car in such a manner that after collision, it went some yards ahead of the

place of accident and turned turtle, is in itself indicative of the fact that the driver was rash and negligent, as a result of which, he collided with the

vehicle of the deceased and crushed him inside the car, which afterwards resulted into his death. The argument of the learned defence counsel that

as the injured persons have not been examined as witnesses, therefore, the inference drawn would be that, if examined, they would have spoken

against the prosecution, does not hold good in the instant case, for the fact that the prosecution did not deliberately fail to produce such witnesses,

for it was beyond their control and powers of the Court to call for such witnesses, as they belonged to some unkown place in Madhya Pradesh,

and their proper addresses were not unknown even to the deceased, who was killed in the accident. The prosecution in these circumstances, has

not been negligent and wantonly kept them at bay, in order to see that they should not give the correct version with regard to the incident of the

accident in which deceased got killed. In this case, the learned trial Magistrate has depended more upon the evidence of the defence witnesses,

rather than on the unimpeachable prosecution evidence, to show that the accident had taken place at the hands of the accused. Howevver, he has

impliedly held that the accident had taken place due to the rash and neligent driving of the deceased, and this inference has been drawn by him

from the defence evidence. He has tried to decide the case on the preponderance of evidence led by the parties, and that principle of law has no

application in the trial of criminal cases. A criminal case is to be proved or disproved on the basis of prosecution evidence, and not on the basis

preponderance of evidence led by the parties. In the case on hard, from the defence evidence as well, it is found that the accident took place due

to the collision of accused's tempo with the vehicle of the deceased, as a result of which, he died on the way to hospital. In all probabilities and

circumstances of the case, it is fully established that the accused and the accused alone has committed the crime within the mischief of Section

304A RFC for having rashly and negligently collided his tempo with the vehicle of the deceased, as a result of which, he was crushed in the vehicle

and died afterwards.

However, as the injured persons for no fault of the prosecution, could not be produced before the Court, and they could not say as to what sort of

injuries were sustained by them on their person, therefore, the accused has correctly been acquitted of the charge Under Section 337 RFC. In

view of the above discussion, the acquittal by the learned court, is set aside, and the accused is convicted U/S 304A RFC and sentenced to

undergo three months simple imprisonment. The lenient view with regard to the quantum of sentence has been taken for the reason that the accused

has already sustained a long trial from the trial court upto this court, for more than sixteen years.

This appeal is allowed accordingly. The file be returned to the trial court, for consigning the same to records. The appeal file be consigned to

records.