Decided on November 06,1969

JLWANAL Appellant
DEVI LUHAR Respondents


TAKE J - (1.) THIS is an appeal by the complainant with special leave of this Court granted under section 417 (3), Criminal Procedure Code against the acquittal of the respondent of an offence under section 304-A, Indian Penal Code, passed by the Magistrate, 1st Class, Sagar, in Criminal Case No. 880 of 1965, dated 24-2-1966.
(2.) THE appellant, father of the deceased Prakashchand alias Bachhulal, a boy aged about 14 years, had filed the complaint for an alleged offence under seetion 304-A, Indian Penal Code alleging that on 31-5-1964, the deceased had gone to the flour-mill owned by Krishnakumar and Dr. W. S. Quereshi. THE respondent Devi Luhar is their employee as a driver of the flour-mill. Prakashchand had gone as a customer for the purpose of getting wheat ground. THE flour-mill had stopped running and the respondent wanted to re-start it. THErefore, he asked the deceased Prakashchand to fix the belt on the wheel; while the respondent would start the engine by revolving the handle. In that process, the clothes of Prakashchand were caught in the belt and he himself was dragged. He received severe injuries and was removed to the hospital, where he died. The respondent's defence was that the deceased had voluntarily gone near the engine and it was by accident that he was caught in the belt. The respondent denied that he had ever requested the deceased to put the belt on the wheel while he would start the engine. Dr. A. E. Singh (P. W. 7) had examined the deceased Prakashchand just before his death and as per the report, Ex. P/1, had found that the patient was in gasping stage having compound fracture of right arm; completely crushed and fracture of right thigh and there was a close injury of chest and lacerated wound of right side of the scalp. He also opined that the said injuries could have been caused by the accident said to have taken place on account of the patient being caught in the belt of the flour-mill. This doctor reported that the patient died within one minute of his arrival in the hospital.
(3.) THE learned Judge of the trial Court thought that there were no eye-witnesses to the occurrence. Evidently, Jiwanlal (P.W.I), father of the deceased, was not an eye-witness at all, as was clear from the testimony of the said witness. As regards other persons, the trial Judge disbelieved them one and all because of the report, Ex. D /1, said to have been made by one, Khubchand at the police station regarding the accident. It was on account of that report that the trial Judge felt doubtful about the other prosecution witnesses being eye-witnesses of the occurrence. We may observe that the approach of the trial Judge was absolutely erroneous. Khubchand, the person who was said to have lodged a report, was not at all examined by the defence; but the said report was sought to be proved through the testimony of the Sub-Inspector, H. P. Singh (D. W. 4). Thus, this Khubchand was never offered for cross-examination. Evidently, all the prosecution witnesses could not be disbelieved outright merely on the strength of the report, Ex. D/1, made by one Khubchand, who never entered the witness-box. THE report could as well have been a coloured version sought to be given by the respondent. In our opinion, the correct approach would have been to examine whether the eye-witnesses put forth by the prosecution were in fact present at the time of the occurrence or they had been trumped up witnesses. If the trial Judge found that they were trumped up witnesses, then a whole-sale rejection of their testimony might be justified. But if assurance is lent of the prosecution assertion that the witnssses were present, there is no reason to discard the entire prosecution evidence on the basis of the police report, Ex. D/1. But the testimony of the prosecution witnesses has to be examined on its own merits.;

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