State appeal against acquittal under Section 304-A IPC for a fatal delivery-auto accident. FIR named an unknown driver; the eyewitness disclaimed knowledge of the driver; the mechanical examiner turned hostile. The High Court found no error in the trial court's appreciation of evidence and dismissed the appeal at the motion stage.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 41 of 2013
---- Respondent CAUSE TITLE DOWNLOADED FROM CIS PERIPHERY ………………………………………………………………………… For State/Appellant : Mr. Anand Verma, Dy. GA For Respondent : Ms. Prachi Singh, appears on behalf of Mr. Shikhar Sharma
Hon'ble Shri Justice Deepak Kumar Tiwari
Order On Board
05.01.2024
1. The acquittal appeal is directed against the judgment dated 24.11.2012 passed by the Judicial Magistrate First Class, Raipur (C.G) in Criminal Case No.401/2010, whereby the respondent/non-applicant has been acquitted of the charge punishable under Section 304-A of the IPC for causing death of the deceased Punendra Sahu by rash and negligent driving of the Delivery Auto vehicle bearing Registration No. CG 04 TR 8409.
2. Prosecution case in brief is that complainant Santosh Kumar Sahu (PW-1) father of the deceased Punendra Sahu has lodged an FIR on 31.01.2008 at about 5:00 PM, stating that on the said
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date at about 5:00 PM when he was sitting at his Betel Kiosk ( Pan Thela ) his son deceased Punendra Sahu brought water bottle and he was standing besides the said Betel Kiosk. The driver of the Delivery Auto vehicle bearing Registration No. CG 04 TR 8409 driving the said vehicle in a rash and negligent manner, dashed the vehicle against his Betel Kiosk. As a result the said Betel Kiosk got up side down and the deceased came under the said Kiosk and received injuries. Thereafter, he was taken to the Ambedkar Hospital Raipur (C.G) where the deceased was declared brought dead. The incident was witnessed by Budhiyarin Bai (PW-3), Parasram Sahu and others. Upon such information, the merg proceeding has been carried out after giving the notice Ex-P/3 and the Naksha Panchayatnama was prepared Ex-P/4. Merg intimation was registered Ex-P/2. The deceased was subjected to postmortem and the Doctor has opined vide Ex-P/9 that death was due to shock and hemorrhage as a result of head injury. Spot map Ex-P/10 was prepared and the offending vehicle and document were recovered from the owner of the said vehicle namely, Triambak Rao Sonteke, who was not examined. Statement of the witness was recorded and the appellant was arrested on 25.08.2008 vide Ex-P/12.
3. After completion of the investigation, the charge sheet was filed and during trial, the appellant abjured his guilt and claimed to be tried.
4. In order to prove its case, the prosecution examined as many as 7
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witnesses. The appellant in his statement recorded under Section 313 of the Cr.P.C stated that he has been falsely implicated in the case and he was not driving the said vehicle at the time of incident and the owner himself was driving the vehicle and he was sitting besides him and also examined himself in his defence. After evaluating the evidence, the trial Court has acquitted the respondent of the aforesaid charge. Hence this Appeal.
5. Learned counsel for the State/Appellant would submit that the trial Court has not appreciated the evidence in proper perspective and the finding arrived at by the trial Court is perverse and prays to allow the appeal and convict the respondent.
6. It is not in dispute that the FIR Ex-P/1 was lodged against unknown driver of the Delivery Auto vehicle bearing Registration No. CG 04 TR 8409 and the complainant Santosh Kumar Sahu (PW-1), who is the father of the deceased Punendra Sahu, has not named the present appellant in the FIR. Even in the statement which was recorded on the second day i.e. 01.02.2008 vide Ex-D/1, name of the respondent was not mentioned. The respondent has taken a specific defence that at the time of the incident, he was not driving the said vehicle and the owner was driving the vehicle and he was sitting besides the said vehicle. Though such suggestion was denied by complainant Santosh Kumar Sahu (PW-1) in his cross-examination and for the first time in the Court, he has named the respondent as the driver of
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the offending vehicle. Rajesh Kumar Thakur (PW-4) ASI categorically admits that he has not recorded any statement of the owner of the vehicle Triambak Rao Sonteke. Budhiyarin Bai (PW-3) who is named as the eyewitness to the incident, in the FIR Ex-P/1, categorically deposed in her cross-examination at para-3 that she is not aware as to who was the driver at the time of the incident. Rajesh Sahu (PW-2), who is Uncle of the deceased reached the spot after the incident. Satruhan Koshal (PW-5) deposed that on the instructions of the SHO he has arrested the respondent vide Ex-P/12 on 25.08.2008. Prosecution has not proved any statement which has been recorded during the investigation to show that at the time of the incident, the respondent was the person who was driving the vehicle.
7. Billu Baghel (PW-6), who has mechanically examined the offending vehicle, has turned hostile and completely denied that after the mechanical-examination he has issued certificate Ex-P/ 15.
8. Considering the fact that PW-6 has turned hostile and the other witness i.e. father of the deceased Santosh Kumar Sahu (PW-1) is the only witness who has given a general statement that at the time of the incident the respondent was driving the vehicle in rash and negligent manner and mere bald statement is not sufficient to prove the act of negligence. As regards the negligence in civil and criminal proceeding, it is well settled that in civil proceedings, a mere preponderance of probability is
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sufficient, but in criminal proceedings persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
9. So, considering the nature of the evidence firstly, the author of the crime has not been clearly proved and further the prosecution has also failed to prove the higher degree of rash and negligence on the part of the respondent in the facts of the present case.
10. In view of the aforesaid appreciation, this Court is of the view that there is no factual or legal error of the trial Court on appreciation of evidence and the finding arrived by the trial Court is hereby affirmed and this Appeal bereft of any substance is hereby dismissed at the motion stage itself.
Sd/-
(Deepak Kumar Tiwari) Judge
Priyanka
2 issues framed by the court
Whether the trial court's acquittal under Section 304-A IPC for causing death by rash and negligent driving was perverse.
Whether the prosecution proved beyond reasonable doubt that the respondent was driving the offending vehicle and was grossly negligent.
2 provisions across 2 enactments
State of Chhattisgarh Through: Police Station- Gudiyari, District Raipur (C.G.)
Rajesh Thakur, S/o Shri Harikrishna Singh Thakur
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
