RAMDAYAL Vs. STATE OF M P

JUDGEMENT

(1.) By this revision, the accused challenges his conviction and sentence for the offence under Section 304-A of the Indian Penal Code.

(2.) It was the prosecution story that on 3/5/1981 at about 9.00 A.M. applicant Ramdayal Singh was driving a speeding truck (CPD 8478) along Indore-Bhopal high way. Near village Refiqueganj on that high way, the applicant by his truck knocked down a labourer of P.W.D. gang named Mohd. Khan, who was at that time pushing a hand trolley along that road. Mohd. Khan was knocked down while he on the left side of the road itself. He died on the same day. On trial, Judicial Magistrate First Class Sehore convicted the applicant of the offence under Section. 304-A I.P.C. and sentenced him to R.I. for 1-1/2 years and find of Rs. 4,000.00, in default to further R.I. for four months. In appeal Sessions Judge Sehore maintained the conviction of the appellant but slightly reduced the sentence by visiting the applicant with R.I. for one year and fine of Rs. 1,000.00, in default to further R.I. for three months. Aggrieved by the appellate judgment, the applicant has now come in revision to this Court.

(3.) Having heard learned counsel for the parties and perused the record, in my opinion on the prosecution evidence it was doubtful if applicant Ramdayal Singh was really driving the truck which caused the accident. In the first place, the F.I.R. did not name applicant Ramdayal Singh as the person who was driving the truck. On the prosecution case, the F.I.R. was recorded at the spot itself as Dehati Nalshi by Head Constable Omprakash Singh at the instance of P.W. 1 Shekh. Hameed living close by to the place of the incident. It is natural to expect that if applicant Ramdayal Singh was really driving the truck in question, his name should have been so mentioned in the F.I.R. The prosecution found it convenient not to prove the said F.I.R. by failing to examine, Head Constable Om prakash Singh. Shekh Hameed (P.W. 1) on his part denied having made any kind of report at the spot or anywhere. In these circumstances, the F.I.R. although a document of the prosecution went unexhibited and unproved. Can an unproved document of the prosecution be used by the defence? A view was been taken, with which I concur, that defence like F.I.R. just because the prosecution failed to formally prove it. It is also the view that if the prosecution suggests that its documents should not be relied upon because it was a garbled document, it should have given evidence to that effect In the absence of such evidence by the prosecution, the defence is entitled to use a prosecution document although unexhibited and unproved. The decision of our High Court in Samedas v. State of M.P.1 (a short report of which appears in 1969 J.L.J. S.N. 54), is one such decision. There is also earlier decision of Nagpur High Court in Sheo Prasad v. Emperor2, to that effect. The following observations of Gruer J, who spoke on behalf of the Bench, appearing at page 222 of the report, arc pertinent: The next irregularity is that the First Information Report (Ex. P-I) has not been proved by examining the scribe who wrote it. This is a formal objection and not one that should be advanced on behalf of the prosecution whose document Ex. P-I i.e. The defence should not be shut out from using this document because the prosecution did not formally prove it. The presumption is that such a First Information Report represents the actual information given to the police and taken down by them, and if the prosecution wished to imply that the record of the information made by the police was garbled, it should have given evidence to that effect. As such, it is open to the defence to say that Dehati Nalshi may be looked into in this case, for showing the fact that it did not name the applicant as the driver of the truck in question. This circumstance may not be conclusive to establish the innocence of the accused, for the accused may be a stranger whose name might not be known to the eye-witnesses, in whose presence the report was lodged at the spot.