State of Rajasthan vs Kirti Bhargava

Shiv Kumar Sharma, J.—Instant criminal appeal impugns the judgment dated Sept. 14, 1993 of the learned Munsif and Judicial Magistrate No. 3 Ajmer whereby the accused respondent (for short the accused) was acquitted from the charge u/s 8 of the Rajasthan State Road Transport Corporation (Ticket Less Travel) Act, 1975 (for short the Act).

Brief resume of the facts is that a complaint was filed by the Rajasthan State Road Transport Corporation (for Short RSRTC) against the accused u/s 8 of the Act in the Trial Court with the allegations that on August 31, 1980 when Inspecting party checked Bus No. 6011 near Octroi Post, Pushkar, eight passengers were found without tickets. On being enquired it was known that the passengers had paid the fair but the accused did not issue them the tickets. The accused was summoned and charge u/s 8 of the Act was framed against him. The accused did not accept the guilt and claimed trial. The prosecution examined as many as four witnesses. Thereafter statement of the accused u/s 313 Cr. P.C. was recorded. After hearing the arguments the leaned Trial Court acquitted the accused.

Mr. P.C. Jain, learned Counsel appearing for the appellant made a scathing criticism of the impugned judgment. It was canvassed by the learned Counsel that statements of the prosecution witnesses were not properly considered. The findings arrived at by the learned Trial Court are based on speculative conjectures. Inspite of the clear admission of the accused that bus was checked by the Flying Squad, he was acquitted. It was also contended that the Act was enacted to provide for prevention of ticketless travel and the Trial Court did not take into account that the accused by his conduct, put the Government to loss. Reliance was placed on Dharam Das v. State of U.P. (1973 U.J.656 (S.C)), Ram Prasad v. The State of U.P.1974 U.J. 16(SC)), Khem Karan v. State of 1987 U.P. 389. (SC) ) and Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra,

On the other hand, Mr. Resham Bhargava, learned Counsel appearing for the accused supported the impugned judgment. Learned Counsel urged that no independent witness was produced by the prosecution. If the passengers were travelling without ticket, they were guilty u/s 6 of the Act but no explanation was placed on record by the prosecution as to why they were not prosecuted. The case of the prosecution is also doubtful on the ground that the original tickets which were allegedly issued to the passengers are on record in the Trial Court''s file. The statement of the accused u/s 313 Cr. P.C. does not amount to confession. The accused categorically stated that though bus was checked but allegations against him are false. Reliance was placed on Jagroop and Another Vs. Rex, , Bhugdomal Gangaram and Others Vs. State of Gujarat, , Jaddoo Singh v. Smt. Malti Devi AIR 1983 Allahabad 87, Nannhu Gobrya Vs. State of M.P., Mst. Viram Wali v. State ( AIR 1961 J & K 11) Ram Narain v. State RCC 1990 34 Kishore Chand v. State of H.P. 1990 CrI. L.J. (SC) 2289 Jethu Vs. Devi and Another, Shri Bux Singh v. State of Rajasthan ( 1984 CrI. L.R. 640(Raj.) P. ) Smt. Lichhma Devi v. State of Raj. ( 1988 CrI. L.R. 497 SCP.).

I have given my thoughtful consideration to the rival contentions and carefully scrutinised the record.

Section 3 of the Act provides that every person desirous of travelling in a motor vehicle shall, upon payment of his fare, be supplied by the conductor for a ticket containing such particulars as may be prescribed.

If a person travels without proper pass or ticket, shall be punished u/s 6 of the Act to undergo imprisonment for a period of one month or with fine to the extent Rs. 250/- or with both.

In order to prove the guilt of the conductor, u/s 8 of the Act, the prosecution has to prove that he negligently or willfully omitted to supply proper tickets to the passengers.

The charge against the accused was that he after having realised fare from the eight passengers, did not issue them the tickets. PW. 1 Ramesh Chandra Yadav deposed that when vehicle was checked eight passengers were found without ticket. On being inquired they told that they had paid fare to the accused. PW. 2 Ram Chandra had travelled in the said bus. He did not support the prosecution case. He deposed that-(English Translation)

It is wrong to suggest that conductor did not issue him the ticket.

PW. 2 Ram Chandra was not declared hostile by the prosecution. PW. 3 B.G. Israni also deposed that at the time of checking the bus eight passengers were found without ticket, on being inquired they explained that they had paid the fare to the conductor but he did not issue the tickets. PW. 4 Suresh Kumar Rawat also repeated the same story.

It is evident that the prosecution case rests on the testimony of PW. 1 PW. 3 and PW. 4 who deposed that the passengers of the bus informed that they had paid fare to the conductor but he did not issue them the tickets. Passenger PW. 2 Ram Charan was examined by the prosecution but he did not support the prosecution story. No other passenger was examined to prove that despite payment of fare no tickets were issued. The evidence of PW. 1, PW. 3 and PW. 4 is hearsay. The primary evidence could have been given only by the passengers. The prosecution seeks to rely upon the truth of what the passengers are said to have told the officials of RSRTC and not upon the fact of their telling him. Thus, the evidence of PW. 1, PW. 3, and PW. 4 on the point is hearsay. In Jagroop v. Rex (supra) it was, laid down that "the test to distinguish between direct and hearsay evidence is this "It is direct if the Court set upon, it has to rely upon only the witnesses where as it is hearsay if it has to rely upon not only the witnesses but some as other persons also."

As already stated the prosecution has to prove that the accused negligently or willfully omitted to supply proper tickets to the passengers for bringing home the guilty of the accused u/s 8 of the Act. It is difficult to believe that if the officials of the RSRTC subsequently issued tickets to the alleged 8 passengers then how the said tickets formed the part of the record. Learned Counsel Shri P.C. Jain attempted to convince me by making submission that it is the practice of the RSRTC to take back the tickets issued to the passengers. But I am unable to pursuance myself to agree with this submissions.

So far as another argument of learned Counsel for the appellant that the accused ought to have been convicted on the basis of his admission. It may be said that in the statement recorded u/s 313 Cr. P.C. the accused only admitted that his bus was inspected and checked but the evidence adduced against him, the accused deposed that it was false. So I am unable to agree with this argument also. Now I proceed to discuss the authorities cited Mr. P.C. jain, learned Counsel for the appellant.

In Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, their Lordships of the Supreme Court indicated thus:

Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping to punish marginal innocents.

In Dharma Dass and Ors. v. State of 1973 U.P. (U.J. (SC) 656), it was indicated by their Lordships of the Supreme Court thus:

It is the Court''s duty to sift the evidence separating truth from falsehood, and come to the conclusion about the guilt or innocence of the persons accused of the offence. Exaggeration or falsehood on points which do not touch the core of the prosecution story are not to be given undue importance, provided, of course, there is trustworthy evidence supporting the real substance and core of the prosecution case. After going through the judgment of the Trial Court, we cannot help observing that this real test was not properly kept in view by the Court.

Discussing the effect of withholding the witnesses, their Lordships of the Supreme Court in Ram Prasad and Ors. v. The State of 1976 U.P. (UJ. (SC) 16), observed thus:

In case enough number of witnesses have been examined with regard to actual occurrence and their evidence is reliable and sufficient to base the conviction of the accused thereon, the prosecution may well decide to refrain from examining the other witnesses. Likewise, if any of the witnesses is won over by the accused party and as such is likely to state the truth, the prosecution would have a valid ground for not examining him in Court. The prosecution would not, however, be justified in not examining a witness on the ground that his evidence even though not untrue would go in favour of the accused. It is as such the duty of the prosecution as of the Court to ensure that full and material facts are brought on the record so that there may be no miscarriage of justice. The discharge of such a duty cannot be affected by the consideration that some of the facts if brought on the record would be favouable to the accused. In case the Court finds that the prosecution has not examined witnesses for reasons not tenable or not proper, the Court would be justified in drawing an inference adverse to the prosecution.

In Khem Karan and Ors. v. The State of U.P. and Anr. 1974 UJ 189 (SC), it was held thus.

Neither mere possibilities nor remote probabilities nor more doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person if there is otherwise fairly credible testimony. If a Trial Court''s judgment verges on the perverse, the appellate court has a duty to set the evaluation right and that is about all that has happened in this case. The High Court has given a large margin for reasonable doubt and confirmed the acquittal of a considerable number of the accused.

Coming to the facts of the case on hand, it may be observed that the prosecution has not explained as to why the eight passengers were not made witnesses. If they were found travelling without tickets in the bus why they were not made accused u/s 6 of the Act. Why their explanation that they had paid fare to the conductor was believed by the officials of the RSRTC. If tickets were issued to them by the officials then under what circumstances the said tickets from the part of the record. I do agree that unreasonable doubt cannot be made the foundation a guilt of an accused person, if there is otherwise fairly credible testimony but in this case. In do not find credible testimony. There are many holes in the prosecution story and Mr. P.C. Jain has unsuccessfully attempted to fill these holes. The prosecution is unable to erase the reasonable doubt arises in my mind in respect of the prosecution story. The prosecution has failed to prove the charge u/s 8 of the Act against the accused beyond reasonable doubt. I see no illegality in the judgment of the learned Trial Court.

Resultantly, the appeal fails and is hereby dismissed. The record of the case be sent back forthwith.