Arjun Ghusi vs State of Orissa

G.K. Misra, C.J.—The Petitioner has been convicted under Sections 304-A, 279 and 337, Indian Penal Code and sentenced to R.I. for

one year, three months and three months respectively; the sentence to run concurrently. Prosecution case in short is that the Petitioner was driving

truck No. O.R.N. 373 loaded with bricks on 4.8.1970. He had no licence to drive a heavy vehicle. Five persons sat on the top of the loaded

bricks and another person was in the driver''s cabin. The truck capsized at about 10.30 a.m. at a place 3 Kms. from Sundargarh. It went off the

road on its right after dashing against the mile stone and ultimately capsized at a distance of 29 to 35 feet from the road after travelling down the

slope of 8 feet. The defence was one of complete denial. The Petitioner denied to have driven the truck and disowned any knowledge regarding

the accident. Both the Courts below have concurrently found that the Petitioner was driving the truck and his driving was rash and negligent as a

result of which the accident occurred.

The only point raised by Mr. Patel is that there are no satisfactory materials on record to hold that the Petitioner was driving the truck. In

paragraph 6 of his judgment the learned Addl. Sessions Judge has fully discussed the evidence of p.ws. 4 and 5 on which both the Courts placed

reliance in support of their conclusion that the Petitioner was driving the truck. Mr. Patel took me through the evidence of p.ws. 4 and 5. They

appear to be witnesses of truth. They are simple village folk. From their evidence it is clear that they narrated the truth without any embellishment.

Both of them were injured and there is no reason that they would falsely implicate the Petitioner that he was driving the truck. The accident took

place at 10-30 a.m. and the F.I.R. was lodged at 11.30 a.m. There was hardly one hour time. The likelihood of the Petitioner being falsely

mentioned in the F.I.R. is almost negligible. The Petitioner is the Khalasi of the truck. There is no evidence that the driver Golam was in the truck.

That further probabilises the theory that the Petitioner was driving the truck.

Mr. Patel placed reliance on Karnesh Kumar Singh and Others Vs. The State of Uttar Pradesh, and Kali Ram Vs. State of Himachal Pradesh, ,

in support of his contention that as the person who was inside the cabin was not examined the prosecution case should not be accepted. There is

no such hard and fast rule. It is doubtless desirable that prosecution should examine as far as practicable'' all the eye-witnesses to unfold the

material part of the story. But this is not a rule of law. The theory is based on common sense. When all the eye-witnesses are examined the Court

would be in a position to appreciate the real situation. This proposition cannot, however, be given the pedestal of law. In other words, it cannot be

laid down that unless all the eye-witnesses are examined the prosecution case should not be accepted. If the prosecution examines some of the

eye-witnesses and they are reliable it is open to the Court to base a conviction on their evidence. The applicability of the common sense view

would vary according to the facts and circumstances of each case. The aforesaid Supreme Court decisions do not lay down any theory to the

contrary.

As has already been stated, the evidence of p.ws. 4 5 and the intrinsic circumstances of the case lead to the irresistible conclusion that the

Petitioner was deriding the truck rashly and negligently.

There is no merit in the revision. It is accordingly dismissed.