STATE OF RAJASTHAN Vs. MISRIYA

JUDGEMENT

(1.) This is an appeal filed by the State against the judgment of lea-C.J.M., Jalore dated 16.5 78 whereby the learned C.J.M. has acquitted accused Mishriya of the offence u/s s. 279, 337 and 304-A I.P.C.

(2.) The facts necessary to be noticed for the disposal of this appeal briefly stated are : that the Jeep RJN bearing No. 531 belongs to one Rewachand Mahajan who employed one Dhanraj as its driver. On 20/6/74 Dhanraj took that Jeep to Dhinmal town at about 10 P.M. to bring back Rewachands son from the colony, it is alleged that in the way near about Mishriyas shop, the Jeep was stopped on a sign given by accused Mishriya who happens to be a friend of Dhanraj, Both Mishriya accused & his companion who also happens to be mother Mishriya who boarded this Jeep and when the Jeep was being taken towards the Station-side, it was being driven rashly and negligently. When it came near the turn, it got imbalanced and diverted towards the Kachcha road as a result of which one Chiranjilal was injured and later died on account of the injuries received by him in that accident and one more child was also injured/in that accident A written report of the incident was lodged by one Hari Shanker at P.S. Bhinmal which has been marked Ex. 8. Latter, investigation was conducted. Injuries of the child i.e. kumari Hemlata were got examined and the injury report of Chiranjilal was also prepared and later his post-mortem report Ex. P. 2 was obtained. During investigation, it came to the notice of the police that accused Mishriya was driving the Jeen bearing No. 531 instead of Shri Dhanraj who is its real driver employed by the owner and, therefore, the case against the accused Mishriya was challaned. In this case, the death of Chiranjilal on account of the accident due to rash & negligent driving and injuries received by Kumari Hemlca are not disputed before me by the learned counsel for the appellant. Mr. Doongar Singh has not challenged this part of the prosecution story. He has also not challenged that Jeep RJN 531 was involved in the accident. The only point of contest, raised by the learrned P.P. Shri B.R. Mehta is that the Jeep at the relevant time was driven by accused Mishariya and not by Dhanraj. The learned P.P. Shri B.R. Mehta for the State has stated that P.W.1 Shri Bhawani Shanker, P.W. 2 Shri Narain Singh, P.W. 3 Hari-shanker, P.W. 4 Abid Ali have categorically stated that at the relevant time, the Jeep was being driven by accused Mishariya and not by Dhanraj. It is true that all these witnesses have stated that at the relevant time, the Jeep was being driven by accused Mishariya. However, P.W. 3 Shri Harishanker is the person who lodged F.I.R. at P.S. Bhinmal in which he has reported that at the relevant time, Shri Dhanraj driver was driving that Jeep. He did not report or state in the police that it was driven by Mishariya. He has been conformed with his police report but he has not been able to explain as to how he got it recorded in the F.I.R. Ex. 8 and his police statement Ex D 2, that Dhanraj was driving the vehicle at that relevant time. P.W. 5. Dhanraj has of course stated that Jeep was being driven of Mishariya but his statement cannot be believed on the ground that if Mishariya was not driving that vehicle, it can be presumed that he was driving the Jeep and so it is in his interest to throw the balance on Mishariya. He has stated that Mishariya forcibly took the stearing from him and stared driving the vehicle In cannot be believed that somebody can forcibly take control of the steering of a vehicle from the driver of that vehicle and still h; does not object to it and goes in the vehicle alongwith him. P.W. 6 Madan Singh has also stated that the Jeep was driven by Mishariya at the time of the accident but the other occupant of the Jeep i.e. second Mishariya P.W. 8 has crated that the Jeep was driven by accused Dhanraj at the relevant time and not h Mishariya. As per him, it was Dhanraj who has caused this accident. Although, he has been declared hostile & cross-examination has been made with him but he has categorically stated that the Jeep was driven by Dhanraj at the relevant time and thus what has been mentioned in the F.I.R. as per his testimony is correct.

(3.) Under these circumstances, the learned lower Court took the view that is cannot be held definitely that it was accused Mishariya who was driving the Jeep at the relevant time. This judgment is based on a proper scrutiny of the evidence and in such matters where the prosecution has led evidence which can be interpreted in two ways the interpretation which goes in favour of the accused should be accepted and adopted.