Yogesh Kumar Vs State of Chhattisgarh

This criminal revision preferred under Section 397/401 Cr.P.C. by the applicant/accused is directed against the judgment of conviction and order of sentence dated 20.06.2011 passed by the 1^st Additional Sessions Judge, Mahasamund (CG) in Criminal Appeal No.112/2009 confirming the judgment dated 13.10.2009 passed by the Judicial Magistrate First Class, Saraipali, Dist. Mahasamund (CG) in Criminal Case No.28/2009 wherein the learned Magistrate held the applicant guilty for the offence punishable under Sections 279, 337, 338 and 304A of IPC and sentenced him to fine of Rs.500/- and Rs.1,000/- under Sections 279 & 337 IPC and to undergo RI for two years with fine of Rs.1,000/- each under Sections 338 & 304-A of IPC and in default to pay fine amount, further SI for one month and two months respectively with a direction to run sentences concurrently.

¶18

2 / 6

¶19

Factual matrix of the case, in brief, is that on 23.10.2005 at about 8.00 pm, the Marshall vehicle bearing registration CG-06-9199 (for short, the ‘offending Marshall’) was being driven by one Hemant whereas Surendra Sahu, Sadan Pradhan, Shiv Prasad, Mangal, Naresh Purohit and Yogesh Tiwari were travelling and the said Marshall vehicle was coming from Kisanpur to Beljhamuda and after having dinner in Dhaba ahead of Sarapali, the applicant Yogesh was driving the said Marshall in a rash and negligent manner, as a result of which, it dashed the stationary truck bearing registration No.CG-04-G-0373 (hereinafter referred to as the truck) parked in front of Samleshwari Rice Mill, due to which, Hemant Pradhan and Naresh Purohit died while the other persons received injuries. Report of incident was informed to the Police Station Saraipali where vide Ex.P.7 Dehati Nalishi was registered.

¶20

After completion of investigation, charge sheet was filed against the applicant before the Court of JMFC, Saraipali. The applicant abjured his guilt and pleaded innocence.

¶21

Learned Court of J.M.F.C., Saraipali, after appreciation of oral and documentary evidence, recorded the finding of conviction and sentence as mentioned in paragraph 1. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court, vide its judgment dated 20.06.2011 has dismissed the appeal while confirming the conviction and sentence as made in opening paragraph.

¶22

Learned counsel for the applicant submits that the Trial Court and Appellate Court have not properly assessed the evidence that the applicant was driving the Marshall vehicle in a careful manner and the said truck was stationed diagonally in the middle of road and at that time the Marshall vehicle reached near the stationed truck, suddenly breaks of Marshall failed, due to which, the applicant was not able to control the vehicle, resulting into, it dashed the said stationed truck from the back side. He further contends that as per the map (Ex.P.9) and according to the statement of P.W.2 Leeladhar, the said truck was stationed in the middle of road without giving any sign or indicators. As per the statement of P.W.4 Surendra Kumar

¶23

3 / 6

¶24

Sahu, the said Marshall vehicle was being driven by the applicant in a moderate speed and normal condition and as per the mechanic report Ex.P.16 given by P.W.8 Chand, break pipe of the Marshall vehicle failed and was not working properly at the time of accident, therefore, if the statements of P.W.2 Leeladhar, P.W.4 Surendra Kumar Sahu and P.W.8 Chand are considered together with the documents Ex.P.9 and Ex.P.16, then the present applicant was not driving the Marshall in a rash and negligent manner and it was due to failure of break and the parking of truck diagonally in the middle of road, the said accident took place. In support, he placed reliance upon the decision of the M.P. High Court rendered in the matter of Mahadev vs. State of M.P. reported in [2006] 2 MPWN 107 to contend that accident occurred due to failure of break pipe all of a sudden is simply an accident covered under Section 80 of the IPC.

¶25

On the other hand, learned counsel for the State supported the judgments of the learned trial Court and appellate Court and submits that the applicant was rightly convicted and sentenced by both the Courts based on evidence available on record. 7. I have heard learned counsel for the parties and perused the record. 8. As per the statement of P.W.2 Leeladhar, the said truck was stationed in the middle of road and after the accident, offending Marshall was seized vide Ex.P.3 and its documents were also seized vide Ex.P.4 and P.5. According to statement P.W.3 Sankarshag Panda, the offending Marshall was being driven by the applicant and near the village Bothlidih in front of Samleshwari Rice Mill, the applicant was driving the Marshall vehicle and on being asked, the applicant told them that due to failure of break, he could not control the vehicle, due to which, dashed the stationed truck. In cross-examination, this witness has further stated that the said truck was parked on the road without giving any indicators and further stated that the applicant has specifically stated that breaks of Marshall failed and despite that he was trying to control the vehicle, but unfortunately, the said vehicle could not be controlled by him and accident took place. P.W.4 Surendra Kumar Sahu has stated that after having dinner at Dhaba, the offending Marshall was being driven by the applicant and after

¶26

4 / 6

¶27

going some distance, accident took place near rice mill and that he was driving the vehicle in the same way as if a person drives the vehicle, but hit the stationed truck. P.W.8 Chand has stated that he examined the vehicle and on examination, he found that break pipe of the vehicle failed and was not working properly. His report is marked as Ex.P.16.

¶28

From the above evidence, it appears that the offending Marshall was being driven by the applicant in a normal condition and that too in a moderate speed. Further it would reveal from the above evidence that all of a sudden the break pipe failed and was not working properly and also that the applicant was trying to control the vehicle despite failure of break pipe but he could not control the vehicle and unfortunately dashed the stationed truck from the back side. It also appears from perusal of above evidence that the said truck was stationed in the middle of road diagonally without giving any sign or indicators, which was not expected by the applicant that a truck was stationed in the middle of road diagonally as at that time the applicant’s vision was to control the vehicle despite of break failure and in that event he could not notice the truck being stationed in the middle of road diagnoally and on account of truck being stationed diagonally in the middle of road, the unfortunate accident took place. Moreover, Ex.P.16, which is a mechanic report, clearly spells out that due to failure of break pipe of the Marshall vehicle, the said vehicle could not be controlled by the applicant. The said Ex.P.16 was duly corroborated by the evidence of P.W.8 Chand, who has also stated that the break pipe was not working properly and failed at the time when the offending vehicle was in motion, therefore, the unfortunate accident occurred. As such, the statements of above prosecution witnesses coupled with the map (Ex.P.9) and mechanical report (Ex.P.16) clearly and undoubtedly prove that at the time of accident the break pipe of the Marshall vehicle was not in working condition and failed while the vehicle was in motion. In such a situation, Section 80 of the Indian Penal Code comes into play which provides as under:-

¶29

5 / 6

¶30

“Section 80 – Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful Act in a lawful manner by lawful means and with proper care and caution.”

¶31

Relying upon the Section 80 IPC, the Madhya Pradesh High Court in

¶32

Mahadev’s case (supra) has held in para 7, which reads as under:-

¶33

“7. As steering wheel being not in order and was not workable is a part of prosecution story itself shows that it was not necessary for the accused/applicant to state these facts in so many words even in his examination under section 313 of the Code of Criminal Procedure. This plea was placed into service before the learned appellate Court. Learned appellate Court ignored this plea by picking up some portion of the statement given by PW 9 but the learned appellate Court failed to consider this aspect of the matter that witness Revaram PW 9 and his report Ex.P-9 were part of prosecution story as the witness was not declared hostile by the prosecution so the statement was binding on the prosecution and was sufficient to prove the fact that the steering wheel of the vehicle was not in working order.”

¶34

When the present matter is considered in the light of aforesaid decision, it is quite vivid that on the date of incident, break pipe was not in order and not workable while the Marshall vehicle was being driven by the applicant. It is also quite vivid that at the time of accident, the said truck was stationed diagonally in the middle of road without any sign or indicators and in that event the accident took place. Had the truck not been stationed diagnoally in the middle of road, the accident could have been avoided. It is also apparent from the above evidence that the applicant was trying to control the vehicle to avoid accident and in that event the said Marshall dashed the stationed truck from back side. It is pertinent to mention here that while travelling, no one expects that accident would occur. The evidence of above prosecution witnesses coupled with the map (Ex.P.9) and the mechanical report (Ex.P.16) to show the manner in which the accident took place, was also ignored by both the learned trial Court as well as the appellate Court and without having considered the substantial evidence disproving the guilt, have held the applicant guilty under Sections 279, 337, 338 & 304-A of the IPC. In my considered opinion, the appreciation of evidence done by both the learned Courts amounts to perversity and as such cannot be sustained and the applicant is entitled to be acquitted of the charges for the aforesaid offences by giving him benefit of doubt.

¶35

6 / 6

¶36

In the result, the revision is allowed. The conviction and sentence passed by the trial Court and confirmed by the appellate Court, is set aside and applicant is acquitted of the charges for the aforesaid sections entitling him to be released from jail on the basis of benefit of doubt. Since the applicant is reported to be on bail, therefore, his bail bonds shall remain in force for a period of six months as per the provisions contained in Section 437-A of the Cr.P.C.

¶37

Sd/-

¶38

(Radhakishan Agrawal) JUDGE

¶39

Anjani

Yogesh Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Yogesh Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Omprakash Vs State of Chhattisgarh

Smt. Sarla Agrawal Vs Mahadev Transport Service Bilaspur

Dr. Vitthal Kumar Agrawal Vs Mahadev Transport Service Bilaspur

The Oriental Insurance Co. Ltd. Vs Smt. Pooja Dewangan

The Oriental Insurance Co. Ltd. Vs Smt. Sunita Sinha

The Oriental Insurance Co. Ltd. Vs Smt. Sunita Yadav