Mukesh vs State Of Rajasthan

Petitioner has preferred this Criminal Revision Petition aggrieved by judgment & order dated 25.10.2017 passed by Additional Chief Judicial Magistrate, Aklera, District Jhalawar, whereby petitioner has been convicted for offence under Section 279 and 304-A I.P.C. and has been sentenced to undergo six months simple imprisonment for offence under Section 279 I.P.C. and has been sentenced to two years simple imprisonment for offence under Section 304-A of I.P.C. Petitioner is further convicted under Section 3/181 of the M.V. Act and a fine of Rs.500/- has been imposed upon him and on default of fine to further undergo 5 days simple imprisonment, and against the judgment & order dated 21.08.2018 passed by Additional Sessions Judge, Aklera, Jhalawar (Raj.), whereby Criminal Appeal preferred by the petitioner was rejected and the judgment and order of the Court below was affirmed.

It is contended by counsel for the petitioner that there was head on collision between a motor-cycle and a cycle. Petitioner was driving a motor-cycle, whereas the deceased was on a cycle. As per the prosecution case, there are two witnesses PW-1 Sher Mohammed and PW-11 Ashraf Khan. PW-11 Ashraf Khan has turned hostile, whereas, PW-1 Sher Mohammed has deposed before the Court below, that he was riding a cycle and was following the deceased at a distance of about 50 feet. It is argued that PW-1 Sher Mohammed has deposed, that petitioner was driving the motor-cycle at a fast speed and was intoxicated at the time of alleged incident.

It is also contended that there is no evidence with regard to petitioner being intoxicated. It is also contended that from the site plan Ex.P-5, it is not revealed that petitioner was at fault, as the place of accident as per the site plan is on the centre of the road.

It is contended that while preparing the site plan, the distance from the side of the road was not mentioned. Hence, it cannot be assumed that the petitioner was at fault. It is also contended that since PW-1 Sher Mohammed was at a distance of 50 feet, he cannot give statement about rash and negligent driving. As per the site plan, PW-1 Sher Mohammed and PW-11 Ashraf Khan were following the deceased and they were coming from the side of Mishroli.

Learned Public Prosecutor has opposed the present Criminal Revision Petition. His contention is that there is concurrent findings of two Courts with regard to rash and negligent act of petitioner, and there is no impropriety and irregularity in the impugned orders so as to exercise the revisional jurisdiction.

I have considered the contentions.

From the site plan Ex.P-5, it is revealed that the deceased was coming from the side of Mishroli and PW-1 Sher Mohammed was following at a distance of about 50 feet. Point "A" in the site plan is the place where two vehicles collided and there were blood stains at point "A" for a vehicle coming from Mishroli. "A" happens to be on the right side of the road, which apparently points out that the deceased came on the wrong side of the road and collided with the vehicle which was being driven by the petitioner who was coming from Arnia. The site plan lacks particular material as to the distance from the corner of the road to the place of occurrence so as to fasten the liability on the accused. Merely because petitioner was riding a motor-cycle and deceased was on the cycle, it cannot be assumed that petitioner was driving the vehicle rashly and negligently.

The Courts below have not ventured into the site plan so as to arrive at a just conclusion with regard to rash and negligent act of the accused.

In the result, the present Criminal Revision Petition, therefore, deserves to be and is accordingly allowed. Judgment and order passed by the Courts below are quashed and set-aside. Petitioner is acquitted of the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other case or for any other purpose.

Petitioner is directed to furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar  (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the petitioner on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.

Application for Suspension of Sentence stands disposed.