RASHID Vs. STATE OF M P

JUDGEMENT

(1.) THIS criminal appeal arises out of a judgment dated 7th of July, 1993 passed by learned Fourth Additional Sessions Judge, Ratlam in Sessions Trial No. 130/85 holding the accused appellant guilty of offence punishable under Section 304-A, IPC and sentencing him only to a fine of Rs. 11,000/- with direction that out of the said amount, fine of Rs. 5000/- be paid individually to parents of the deceased towards compensation.

(2.) BRIEFLY narrated the facts of the prosecution case are that on 5-6-1985 an information was received at Police Station, Station Road, Ratlam that deceased Nanuram had been admitted at Civil Hospital. The police recorded the information (Ex. P-12) and made an application vide Ex. P-13 for his medical examination. The medical examination was conducted vide Ex. P-15 and as per Ex. P-16 the dying declaration of the deceased was recorded by Dr. O. P. Gupta. Another dying declaration of deceased Nanuram was recorded on 6-6-1985 vide Ex. P-17. Nanuram died in the intervening night of 6-6-1985 and 7-6-1985. Inquest panchnama of the dead body was prepared vide Ex. P-25 and Post-mortem report is Ex. P-6. The spot map was prepared vide Ex. P-2 and initially the offence was recorded at police outpost Shivgagh vide Ex. P-24, which was later on registered as a crime at Police Station, Shallana vide Ex. P-22. Accused Rashid was arrested vide Ex. P-10 and was tried upon a charge under Section 302, IPC with owners of the truck being co-accused Bherulal and Shyamsunder, who were tried only under Section 201, IPC. The accused took a plea of innocence and alleged false implication. Dr. Mohan Bhatia (P. W. 8) opined that death of the deceased was caused due to shock resulting from infection and damage to peritoneal cavity of the abdomen. The Trial Court noted that there were three dying declarations. Ex. P-16 is the first dying declaration recorded by Dr. Om Prakash Gupta (P. W. 13 ). It did not bear the thumb impression or the signature of the deceased. Another dying declaration being Ex. P-17 was recorded on 6-6-1985 by Dr. Naresh Mitnaki. It bore thumb impression of the deceased, but the timing of its recording was noted. That apart, Ex. P-1, a third dying declaration was also recorded on 7-6-1985 by Head Constable Harendra Pal Singh. It appears that the hospital record of admission dated 4-6-1985 mentioned the cause of injuries being fall from a mango tree on 2-6-1985, but during medical treatment on 5-6-1985, the deceased informed Dr. Om Prakash Gupta (P. W. 13) that he suffered the injuries on falling from vehicle of Ganesh Transport Company. Accordingly the doctor sent an information vide Ex. P-12 to the police. The deceased explained that when he was climbing on the front door of moving truck, he had fallen. The Trial Court also noticed that it was mentioned in the statement of Rama (P. W. 9) a hostile witness, that Nanuram had fallen from truck. Likewise, Mangu (P. W. 1), another eye-witness, stated that Naturam was engaged as Cleaner in the truck and he sustained injuries by falling from the vehicle. The learned Sessions Judge on a careful reading of the dying declarations found that Ex. P-1 recorded by Head Constable H. P. Singh (P. W. 3) was written in the same handwriting as that of Ex. P-17, which was signed by Dr. Naresh Mutnar (P. W. 15 ). Moreover, the Trial Court also held that the first dying declaration (Ex. P-16) does not show that the deceased died on being dashed by a truck. It appears that in the hospital, the deceased informed his mother Hirkibai (P. W, 2) that when he was cleaning the vehicle, the driver started it and thereby he received an injury in his chest. Thus, the statement of Hirkibai was found to corroborate the statements of Rama (P. W. 9) and Mangu (P. W. 1) as regards the cause of injuries.

(3.) THUS, on a proper appreciation of evidence the Trial Court found that deceased Nanuram was engaged as a Cleaner/labour on a truck, and on the date of incident Driver Abdul Rashid asked him to clean the truck, but when he was splashing water on that truck by climbing on the door, the accused started and moved it. Hence, the deceased fell down and succumbed to injuries in the hospital sustained by fall. Thus, the Trial Court held the accused guilty of rash and negligent driving as there was no intention or motive to cause death of the deceased. Hence, the charge of murder under Section 302, IPC was not found proved and instead the accused appellant has been held guilty of an offence under Section 304-A, IPC and has been sentenced only to fine as aforesaid. The Trial Court did not find a charge under Section 201, IPC proved against the co-accused and hence they were acquitted.