Govt. Appeal (SJ) No.14 OF 1991 ---------- Against the judgment of acquittal passed by Shri Ram Nath Prasad, Judicial Magistrate Ist Class, Madhepura. --------- The State of Bihar …………Appellant Versus Shambhu Mandal, son of Biranchi Mandal, resident of village – Uda Kishunganj, P.S. – Uda Kishunganj, District – Madhipura ………… Respondent --------- For the Appellant : Shri Ajay Mishra, APP For the Respondent: Shri D.K. Singh, Advocate ----------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. The Government has appealed against the judgment and order of acquittal dated 21st September, 1990 passed by Shri Ram Nath Prasad, Judicial Magistrate, Ist Class, Madhepura passed in G.R. Case no. 306 of 1986 / Tr. No. 94 of 1990. 2. The solitary respondent was accused of having driven the jeep bearing registration number BHM 9491 on 13.4.1986 and thereby to have knocked down and further to have run over one Maksood Alam, a child of over ten years, who was the son of P.W. 5 Anwar Manir Azad. The further story was that when the accident took place, the informant and others who were sitting at a tea stall, put a wooden bench across the road and also signalled the driver to stop but in spite of the hurdle put across the road, the respondent was sped away with the vehicle and in that process, broke the wooden bench to pieces 2 which was put as a hurdle in the drive way of the vehicle. It was stated by P.W. 6, the informant of the case, namely, Kailash Prasad Jaiswal that he along with others, who were there, rode on a truck to chase the vehicle and lastly, the vehicle could be located somewhere abandoned by the side of the road at Chausa. The driver of the vehicle including the passengers, some of whom were travelling atop the jeep, were not found there. The jeep was pushed down to Chausa bus stop and the matter was reported to the police. This was how the FIR (Ext. 1) of Chausa P.S. Case no. 28 of 1986 was registered by P.W. 8 SI Suresh Chandra Mishra, who himself took up the investigation. 3. On consideration of the evidence of P.W. 8, what is found is that when he reached at the place of occurrence, he found the dead body lying by the side of the road, which was about 10 ft. wide. He found the dead body lying at a distance of about 200 yards from the chowk, where, as per the informant, the tea stall was located. He found flank of the road dusty on its western side and the marks of the wheels were apparently visible at the place where the dead body was found lying. P.W. 8 further found that about 200 yards south of the chowk, the wooden bench of the shop was broken into pieces. P.W. 8 held the inquest and sent the dead body for postmortem examination. 4. Prior to having inspected the place of occurrence, he took into his custody the jeep bearing number BHM 9491, which had been pushed by the mob of persons up to the premises of the police station. 5. P.W. 9 Dr. J.B. Singh who was posted on 13.4.1986 in Sadar hospital, Madhepura as Civil Assistant Surgeon performed 3 autopsy on the dead body of Maksood Alam, who was aged about 11 years and found fracture of right arm and blood was found infiltrated under the skin and soft tissues. A bruise was there measuring 2” x 1” x 1” on right knee. It was bleeding from both nostrils and both the sides of chest were found swollen and on removal of the skin, 4th, 5th and 6th ribs of both the sides were found having penetrated up to lungs and underlying tissues were found lacerated. In the opinion of P.W. 9, the death had occurred due to injury no. 5, which had caused shock and haemorrhage, which injury was sufficient, in ordinary course of nature, to cause death. P.W. 5 stated that the injuries which were recorded by him in Ext. 3, the postmortem examination report, could be possible in case the child was run over by a jeep. 6. After investigation, charge sheet was submitted and the solitary respondent was put on trial. While passing the impugned judgment, the trial magistrate was reading contradictions in the statement of witnesses and while doing so, he was going on all minutest details as if those were the issues which could be very material for judging the proof of charges and he was holding that the witnesses could not be held liable on account of their evidence suffering from material contradictions besides each of them was contradicting the other. The learned trial magistrate was also observing that some of the witnesses by their own evidence, did not appear to be eye witnesses on many reasons. Some of the reasons being that the very presence of theirs on and around the scene of occurrence, was not 4 possible. On these reasons the learned trial magistrate held that the charges had not been proved and acquitted the present respondent. 7. While making the submissions, in support of the present appeal, the learned Additional Public Prosecutor has taken me through the evidence of witnesses and also submitted that there was no material contradiction which could be said to be going to the root of the prosecution story and whatever was stated by the witnesses, appeared immaterial. The witnesses had given real reasons for their presence on or around the place of occurrence and the learned trial magistrate was simply taking a very shallow view of the evidence and was rejecting it in the wholesale. It was contended that the evidence of the witnesses fully proved the charges and the judgment was completely perverse in the light of the evidence brought on record and, as such, the order of acquittal be reversed. 8. Learned counsel for the respondent also took me through the relevant part of the evidence of almost all the witnesses, specially, those who have claimed themselves to be eye witnesses and also submitted that their evidence suffered from serious defects and P.Ws 5 and 6, who were the father of the deceased and the informant of the case, on their own showing, could not be said to be eye witnesses. It was further contended that P.W. 7, Md. Samsul may also not be an eye witness. Learned counsel for the respondent placed before me three decisions of the Supreme Court reported in (1997) 3 SCC 747, (2000) 3 SCC 454 and (2006) 10 SCC 313 to submit that when an appellate court has to consider an order of acquittal, then very strong and 5 compelling reasons must be shown to him so as to reverse the judgment of acquittal. It was contended that if two views were reasonably possible, then the order of acquittal must not be disturbed. Besides, if the reasons assigned by the trial judge was very strong and had properly recognized the doubt in the prosecution case, then also the order of acquittal could not be disturbed. 9. It is too well known to be reiterated that an order of acquittal could never be set aside unless some very compelling reasons are shown on account of the mis-appreciation of the evidence and ignorance thereof. If two views are reasonably possible and if the trial court appears taking one of the two views, then also the order of acquittal has never to be disturbed. In all cases of appeal against acquittal, it is necessary that the appellate court is convinced that some material facts or evidence have been ignored or mis-appreciated, which had resulted in miscarriage of justice and on that account some perversity had seeped into the judgment making process, then only the judgment of acquittal could be disturbed. Those decisions cited by the learned counsel for the respondent are on the above line and one could never differ with the principle set down by those judgments. 10. Here, in the present case, there is evidence of six eye witnesses. The eye witnesses are P.Ws 1, 2, 4, 5, 6 and 7. P.W. 3, Shankar Prasad Singh was a witness of formal character, who was simply giving the evidence on being acquainted with the signature of the Officer Incharge of Chousa police station on the FIR. P.W. 6, the informant, was stating that he along with others were sitting at the tea 6 stall and were taking tea when a jeep was found coming from the northern side to go towards south and a child was standing on the western flank of the road who was dashed against and run over by the jeep. The jeep was chased by P.W. 5 and others. One man was chasing the jeep by motorcycle, while others were riding over a truck. They could locate the jeep abandoned by the side of the road at Chousa. Neither the driver nor cleaner was there nor any of the passengers was found. It was subsequently found out that it was the son of P.W. 5 Anwar Manir Azad and he was Maksood Alam, aged about ten years. P.W. 6 states that the jeep was pushed up to the police station and the report was registered. That the jeep was being driven by the present respondent has been stated to by P.W. 6 and a co-passenger, like, P.W. 2 Dashrath Ram, who has stated that he was travelling in the jeep and was sitting in the seat just behind the driver. He has stated in his evidence that he and other passengers were always cautioning the present respondent Shambhu Mandal not to drive the vehicle rashly and negligently. Evidence in support of the above fact has come from P.Ws 1, 4 as also P.W. 7. The contradictions which were considered by the learned magistrate was that in the fardbeyan there was no name of the person who had chased the jeep in question by a motorcycle whereas the informant P.W. 6 had named the person as Kailash Prasad Jaiswal. Besides, the learned trial magistrate has noted that whereas P.W. 1 was stating that the child was standing at a distance of 5 ft. from the end of the pitch part of the road on the flank, P.W. 2 has stated in his cross-examination that as soon as he was knocked down 7 by the vehicle, he was thrown away. The learned judge has read the contradictions in the above evidence by noting that if the child was thrown away on account of being dashed against by the vehicle, then he had fallen on the earthen part of the road where there was pitch part and, as such, the finding of the I.O. was disproving the story. 11. After having considered the above finding of the learned trial magistrate, what this Court feels is that the learned trial judge was doing hair splitting while considering the evidence of witnesses. P.W. 2 in cross-examination (paragraph 8) indeed stated that after being dashed the child was thrown towards west but he has never stated that he was thrown out side the pitch part of road. A finding recorded by the trial magistrate that the place where child was falling was not a pitch part of the road is against the evidence of P.W. 2. Likewise, his finding that the threshing of the wheat was being carried out by P.W. 7 and that was over by 9 A.M. and the occurrence was taking place at 11 A.M. was simply in ignorance of the reality of thrashing the wheat and then packing it and bringing it to one’s house. The Agriculturist does not leave the place where he goes for threshing his wheat. As soon as thrashing is over, he has to do other important works in connection thereto. He has to collect the grains, he has to collect the fodder also and then he has to secure the two and also has to dispose of the labourers if any one was engaged. P.W. 7 has stated that after getting his wheat thrashed, he was paying the necessary wages for that to the persons who had threshed it. It might have been over by 9 A.M. but that does not mean that the man could have been away from the 8 threshing spot just when it had been over. Rejecting the evidence and claim of witness about his presence on such flimsy grounds could not be appreciated of by this Court. Evidence of P.W. 2 was very convincing and material also. P.W. 2 Dashrath Ram was in the jeep and he was supported by P.W. 1 Mahendra Paswan and other witnesses, like, P.W. 6 and P.W. 7 Md. Samsul. Reading smaller matters which were not going to the root of the prosecution and which were not affecting its central story and then acquitting the accused is simply unknown to the criminal jurisprudence. 12. On consideration of the evidence of witnesses, what this court finds is that there might have been some minor differences in description of a particular fact but those facts were never stated to or described by all the witnesses. If a witness was asked to describe the level of the road, no such question was put to any other witness. How the trial magistrate could hold that the person who was saying that the road was higher than the ground level was contradicting the other witness. This approach simply cannot be appreciated by me. Besides, the present respondent Shambhu Mandal was the driver of the jeep, he was serving the people by taking the passengers from one place to the other. None of the witnesses was suggested to entertain any grudge against him. Why, after all, these witnesses will come together to speak in one voice that Shambhu Mandal was driving the jeep rashly and negligently and ran over the boy so as to killing him. The learned trial magistrate appears completely ignoring the central theme of the evidence and has gone on flimsy grounds to acquit the respondent. 9 13. The evidence, specially, of the P.W. 8 lends credence to the manner of occurrence as narrated by the witnesses. Not only the witness found the mark of tyres of the jeep where the dead body was lying but he also found the wooden bench which was put across the road, was completely broken and smashed. Thus, the prosecution story that P.W. 6 and others attempted to stop the jeep but after having committed the act of dashing his vehicle against the boy and having over run him, the present respondent dashed his vehicle against the bench which was broken into pieces and he sped away whereafter certain persons chased him. 14. It was contended by the learned counsel for the respondent that after being chased neither the present respondent was found there nor any passenger was available and that may indicate that the whole story regarding the present respondent being involved in the occurrence could not be believable. 15. If one goes to the evidence of P.W. 2 Dashrath Ram (paragraph 2), one could find that he has himself stated that after the jeep had been sped away by the present respondent, it was taken to Chousa where the respondent abandoned the jeep by the side of the road. It is a common experience that when an occurrence takes place, the mob fury is there and the driver and cleaner including the passengers are often targeted. It could not be unusual for the passengers after having seen the accident taking place to have run away after abandoning the jeep. There is nothing unusual that no one was found at the spot. The number of jeep gets mentioned in the FIR. 10 The story is consistently narrated by all the witnesses that they chased the jeep besides the same being chased by a person on motorcycle and that the jeep was found abandoned by the road side are all clinching evidence about the involvement of the respondent in the offence. 16. I have already indicated the reason of abandoning the jeep. On taking a holistic view of the evidence, what this court finds is that the order of acquittal recorded by the learned Judicial Magistrate, Madhepura in G.R. Case no. 306 of 1986 was completely against the evidence available on the record besides appears passed on complete misappriciation of evidence. The inference which has been raised by the learned trial magistrate was never available. 17. The evidence of witnesses indicates that the jeep was being driven rashly and negligently. P.W. 2, as I have just pointed out, was cautioning the driver not to drive the jeep rashly and negligently. The rash and negligent driving by respondent Shambhu Mandal could be appreciated from this fact also that the jeep was going from north to south. The child, as has been stated by all the witnesses consistently including P.W. 8, who inspected the place of occurrence and found the dead body, was standing on the western flank of the road. No jeep could go to the western part of the road if driven properly. This fact alone indicates that the jeep was being driven rashly and negligently. 18. Rash and negligent driving was considered by the Supreme Court in the case of Md. Aynuddin alias Miyan Vs. State of Uttar Pradesh 2000(4) PLJR 35 and it was held as follows while 11 explaining the meaning of the two terms and the acts in relation thereto. The relevant paragraph 10, I am tempted to quote:- “A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.” 19. On consideration of the evidence of witnesses and specially that of the I.O. of the case coupled with the evidence of PW 2, one of the co passengers, there does not remain any doubt that it was a culpable rashness of respondent no. 2 resulting into running over a boy and, lastly, killing him. Charges under sections 279 and 304(A) of the IPC are duly found proved by the evidence available on record. 20. In the result, the appeal is allowed. The impugned judgment and order of acquittal is set aside. 21. As regards the sentence, learned counsel for the respondent submitted that the date of occurrence was 13th April, 1986, the order of acquittal was passed in 1990 and this appeal has been 12 heard after twenty one years, as such, the court should take a lenient view in the matter. 22. Section 279 of the IPC punishes the offence of rash driving by imprisonment, which may extend to six months or with fine of rupees one thousand or both. Section 304A of the IPC prescribes a sentence of imprisonment of either description for a term which may extend to two years or with fine or both. 23. Considering the period which has passed off in between the date of occurrence and the present judgment, I feel that the ends of justice shall be served if the respondent is directed to serve simple imprisonment for one month under section 279 of the IPC and pays a fine also of rupees one thousand, which is the maximum limit prescribed by that section. As regards his guilt under section 304A of the IPC, considering the years that have passed off, I direct him to undergo simple imprisonment for six months but, because there is no limit of fine prescribed under that particular provision and ultimate loss is of a child to the parents, I propose to pass an order under section 357 of the Code of Criminal Procedure by directing that the appellant should pay a fine of rupees ten thousand by way of compensation to the parents of the deceased or any of his heirs who could be surviving in addition to the sentence which has been inflicted upon him. In case the respondent does not pay compensation, then he shall have to serve out the sentence of an additional period of imprisonment for six months. 13 24. Let respondent Shambhu Mandal surrender in the court below. His bail bonds stand cancelled. (Dharnidhar Jha, J.) Patna High Court, The 31st March, 2011, NAFR/Anil/