Rajendra Kumar Bhagat Vs State of Chhattisgarh

The State Of Chhattisgarh, through District Magistrate, Jashpur, District Jashpur (C.G.) … Non-Applicant For Applicant : Shri Divyanand Patel appears on behalf of Shri Rishikant Mahobia, Advocate. For Respondent/State : Smt. M. Asha, Panel Lawyer.

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

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Order on Board

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04/11/2024

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This revision has been preferred by the applicant/accused being aggrieved by the judgment of conviction and order of sentence dated 25.02.2011 passed by the Judicial Magistrate First Class, Jashpur in Criminal Case No.16/2010 whereby the applicant was held guilty for committing offence punishable under Sections 279 and 304-A IPC and was sentenced to undergo RI for 6 months with fine of Rs.1,000/- and in default, further RI for 5 days under Section 279 IPC and to undergo RI for 2 years with fine of Rs.10,000/- and in default, additional RI for one month under Section 304-A of IPC. The legality of conviction and sentence was challenged in Criminal Appeal No. 12/2011 wherein the learned Sessions Judge, Jashpur, vide its judgment dated 26.08.2011 partly allowed the appeal and while observing that Section 304-A IPC contains the elements of Section 279 IPC, therefore, he is not required to be convicted separately, convicted him only under

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Section 304-A IPC, however, reduced the sentence to RI for one year from RI for two years and maintained the fine amount.

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Factual matrix of the case, in brief, is that on 05.02.2010 at 4.00 pm in front of building of Pidi village Panchayat, the applicant/accused Rajendra Kumar Bhagat was driving the tractor and trolley, owned by one Rajesh Sinha, in a rash and negligent manner and dashed the deceased Meerabai, as a result of which, she died on the spot. F.I.R. has been registered against the applicant vide Ex.P.6 and after completing investigation, charge sheet under Sections 279, 304-A of IPC and 39/192 of the Motor Vehicles Act, 1988 has been filed. The applicant abjured his guilt.

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The trial Court convicted the applicant as mentioned in para 1 whereas the learned appellate Court while maintaining the conviction, reduced the sentence part, as mentioned in opening paragraph. Hence, this revision.

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Learned counsel for the applicant submits that both the trial Court as well as appellate Court did not appreciate the evidence properly and appreciation of evidence done by both the learned Courts is perverse. The prosecution has failed to prove the negligence on the part of the applicant. Even if the evidence of the P.W.1 Surendra Bhagat and P.W.2 Pramod Kumar is considered as it is, then it is clear that the deceased Meerabai was caught under the wheel of trolley and she herself was negligent. The prosecution has failed to prove that the applicant was driving the tractor trolley in rash and negligent manner. In support, he placed his reliance on the decision of this Court rendered in the matter of Ramcharan vs. State of M.P. reported in (2007) 2 CGLJ 194 : (2007) CriLJ 2884 to contend that for convicting a person under Section 304-A IPC, it is necessary that the death of the person must be caused by rash and negligent act of the accused.

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On the other hand, learned counsel for the State supported the judgments of the learned trial Court and appellate Court. 6. I have heard learned counsel for the parties and perused the record.

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P.W.1 Surendra Bhagat has stated that he and P.W.2 Pramod Kumar were sitting over the engine of the tractor which was being driven by the present applicant and was carrying sand from the river. He has further stated that while moving from Pidi basti towards Jashpur, the deceased was crushed under the rear wheel of the tractor-trolley near a shop and when they saw towards rear side, they found that the deceased came in contact with the rear wheel of the trolley. The incident occurred on a single road and that too there were no pot-holes on it. P.W.2 Pramod Kumar has stated that about 4 months ago, he, (P.W.1) Surendra and the applicant Rajendra were coming towards Jashpur after loading the sand from the river in the trolley and when they were crossing Pidi basti, then near a closed shop, the deceased came in contact with the rear wheel of trolley and at that time, they were sitting on the engine and saw towards the road ahead. He has stated in cross-examination that the deceased herself had entered the trolley portion. Such statement shows that the deceased herself entered the back side of the trolley and thereafter she came in contact with the rear wheel of the trolley. Further, as per the statements of P.W.3 Reeta, P.W.7 Rajesh and P.W.8 Dilip Kumar, they found the dead body of the deceased lying near the rear wheel of the trolley and the vehicle was in stationed condition.

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Generally speaking that a vehicle driver, while driving its vehicle, notices the road ahead and if someone riding a motorcycle or somebody coming by walk behind and attempts to cross the vehicle and receive stroke from back portion of it, then it cannot be said that the driver of that vehicle is negligent as he has to drive the vehicle noticing the road ahead and not behind. In the matter of Ramcharan (supra), a coordinate Bench of this Court has held in para 6 as under:-

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“6. For convicting a person u/s 304A of the I.P.C., it is necessary that the death of the person must be caused by rash and negligent act of the accused. Here in the instant case, from the aforesaid evidence, it is clear that although the applicant was driving the truck, but neither he was driving the vehicle rashly nor the prosecution could prove any negligence on his part. If a truck driver starts his truck and someone riding motor-cycle come behind and attempts to cross the truck and receive stroke from back portion of it, it cannot prove negligence of the truck driver. Both the Courts below without having considered the substantial evidence disproving the guilt,

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have held the applicant guilty u/s 304A of the I.P.C. in such circumstances no doubt, the appreciation done by both the Courts below amount to perversity and that cannot be sustained.”

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When the present matter is considered in the light of aforesaid decision, it is quite vivid that the applicant was driving the tractor-trolley and was carrying sand from the river and as soon as he reached near the closed shop, the deceased herself suddenly came in contact with the rear wheel of the trolley loaded with sand, which the applicant did not notice as he was going ahead. From the aforesaid evidence, it is also quite clear that although the applicant was driving the tractortrolley, but neither he was driving the vehicle rashly nor the prosecution could prove any negligence on his part. Both the learned trial Court as well as the appellate Court, without having considered the substantial evidence disproving the guilt, have held the applicant guilty under Section 304-A of the IPC. In my considered opinion, the appreciation of evidence done by the learned Courts amounts to perversity and as such cannot be sustained.

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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 charge under Section 304-A of IPC. 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.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

Rajendra Kumar Bhagat v. State of Chhattisgarh

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Rajendra Kumar Bhagat v. State of Chhattisgarh

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