[2025:RJ-JP:40965] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S. B. Criminal Revision Petition No. 785/2007 Shami Kha S/o Baney Kha, R/o Kakrali, Police Station Sadar Alwar, District Alwar. (Presently in Central Jail, Alwar). ----Petitioner Versus State of Rajasthan through Public Prosecutor. ----Respondent For Petitioner : Mr. Mohit Gupta Advocate. For Respondent : Mr. Rajesh Choudhary, Government Advocate-cum-Additional Advocate General. HON'BLE MR. JUSTICE ANAND SHARMA Judgment 08/10/2025 1. By way of filing this criminal revision petition, the petitioner has challenged judgment and order dated 27.01.2025 passed by the Court of Additional Civil Judge (JD) and Judicial Magistrate No. 1, Alwar (hereinafter to be referred as 'the trial court') in Criminal Case No. 234/2001, whereby the petitioner was convicted under Sections 279 and 304A of the Indian Penal Code (for short 'IPC') and sentenced under Section 279 IPC with six months' simple imprisonment and fine of Rs. 200/-, in default of payment of fine to further undergo 15 days' additional imprisonment as also under Section 304A IPC with two years' simple imprisonment and fine of Rs. 500/-, in default of payment of fine, to further undergo one month's additional imprisonment. Both the sentences were ordered to run concurrently. [2025:RJ-JP:40965] (2 of 8) [CRLR-785/2007] 2. The petitioner has also challenged judgment and order dated 19.07.2007 passed by the Court of Additional Sessions Judge No. 2, Alwar (hereinafter to be referred as 'the appellate court') in Criminal Appeal No. 38/2005, whereby the criminal appeal filed by the petitioner has been dismissed and judgment and order passed by the trial court has been affirmed. 3. Learned counsel for the petitioner submits that both the courts below have committed serious jurisdictional error as well as material irregularity and illegality in not appreciating the evidence in right perspective and the judgments to convict the petitioner have been passed on the basis of sheer misreading of the evidence on record. Learned counsel for the petitioner submits that it is clear by perusal of FIR lodged by the father of the deceased that on 21.09.2001, at around 4.30-5.00 P.M., when his son Kamal, aged 13 years, was going to his shop from his home, one tempo bearing no. RJ-02 P 1259, which used to ply at Alwar Bhajera route and was being driven by Kala @ Samee Kha came with high speed and crushed his son and on account of injuries caused due to said accident, his son expired. It was also mentioned in the FIR that the tempo driver immediately ran away by leaving the tempo at the spot. 4. Learned counsel for the petitioner submits that thus, it is clear that name of the petitioner was not mentioned in FIR as driver of the vehicle allegedly involved in the accident. However, later on, due to manipulation of the prosecution, name of the petitioner was inserted and he was falsely implicated in the instant case. [2025:RJ-JP:40965] (3 of 8) [CRLR-785/2007] 5. Learned counsel for the petitioner further points out that in the present case, the prosecution has examined as many as six witnesses, out of which, Rajkumar (P.W. 2), Sheeshram (P.W.4) and Manohar Lal (P.W.5) were the eye witnesses. However, none of the eye witnesses has given any categorical statement in order to prove that at the time of the accident, tempo was being driven by the petitioner. Hence, none of the eye witnesses has supported the story of the prosecution. Owner of the vehicle was not produced in evidence to ascertain as to who was driving the vehicle at the time of alleged accident. Thus, the prosecution has utterly failed to establish that the offences alleged against the petitioner were committed by him, yet merely by misappreciating the evidence and in a quite mechanical manner, by recording conjectural findings, the trial court convicted and sentenced the petitioner for commission of offences punishable under Sections 279 and 304A IPC and the appellate court also did not appreciate the grounds raised by the petitioner in criminal appeal pointing out material flaws and defects as also perversity in the judgment and order passed by the trial court. 6. Learned counsel for the petitioner submits that even otherwise, without there being any legitimate and cogent evidence with regard to commission of alleged offences by the petitioner, he has been awarded maximum sentence under Section 304A IPC. The incident in the present case was of the year 2001 and thus, for last 24 years, the petitioner has been facing the criminal trial/proceedings. The petitioner has also remained behind the [2025:RJ-JP:40965] (4 of 8) [CRLR-785/2007] bar for a period of 12 days after conviction and thus, he has already faced the rigor despite committing no offence whatsoever. 7. The alternative submission made by learned counsel for the petitioner is that under the aforesaid circumstances, where there is apparent and conspicuous inconsistency in the evidence led by the prosecution, it would be appropriate to modify the judgments passed by the courts below by extending the benefit of probation to the petitioner or in the alternative, the punishment/sentence of imprisonment imposed upon the petitioner by the courts below, being too harsh, may be considered sympathetically and may favourably be reduced to the period of imprisonment already undergone by the petitioner. 8. In support of contention that in the similar circumstances, whle dealing with similar offences punishable under Sections 279 and 304A IPC, this Court has been granting indulgence to the accused by reducing the period of imprisonment already undergone by the accused by extending the benefit of probation, learned counsel for the petitioner relied upon the decisions rendered by this Court in the cases of Pabu Singh Vs. State of Rajasthan, 2025 (2) ACC 866, Dharmendra Kumar Vs. State of Rajasthan, 2014 (1) CriLR (Raj.) 388 and Nand Lal Vs. State of Rajasthan, 2007 (1) Raj. CriC 236. 9. Learned Public Prosecutor opposed the revision petition and submitted that both the courts below have meticulously examined the material and evidence on record and the judgments impugned have been passed after due analysis of the evidence and law prevailing at the relevant time. Hence, no interference is [2025:RJ-JP:40965] (5 of 8) [CRLR-785/2007] called for in the impugned judgments and orders passed by the courts below and revision petition filed by the petitioner is liable to be rejected. 10. I have heard learned counsel for the petitioner as also learned Public Prosecutor and carefully examined the record of the courts below. 11. Upon perusal of statements given by the witnesses, it would reveal that Pooran (P.W.1), who is father of deceased Kamal Singh has deposed that earlier name of Kale was wrongly written in FIR (Exhibit P-1) on account of hot haste. However, later on, after enquiring from the eye witnesses, name of the petitioner was informed to the police as driver of the vehicle. 12. Rajkumar (P.W.2) has been shown as eye witness by the prosecution. However, this witness also stated in his cross- examination that he had never seen driver of the vehicle and rather, accident had already taken place and he reached at the spot later on. 13. Chiranji Lal (P.W.3) is the investigating officer, who deposed that registered owner of the vehicle, Banne Kha was served with a notice under Section 133 of the Motor Vehicles Act, 1988 (for short ‘the MV Act’) [Exhibit P-6]. However, in cross- examination, this witness stated that name of the driver on the notice was not written by the registered owner of the vehicle, Banne Kha, however, it was written at the instance of Banne Kha. This witness further deposed that he did not know that by whom the name of driver of the vehicle was written on the notice. [2025:RJ-JP:40965] (6 of 8) [CRLR-785/2007] However, during trial, registered owner of the vehicle was not produced as witness by the prosecution before the trial court. 14. Sheeshram (P.W.4) was also produced as eye witness by the prosecution, who, during his cross-examination, also deposed that he had never seen the driver and even on the date of deposition before the trial court, he was not aware as to who was the driving the vehicle. 15. Manohar Lal (P.W.5) also appeared as eye witness on behalf of the prosecution, who utterly failed to identify the petitioner as the driver of the vehicle despite the fact that at the time of his examination, the petitioner was present in the trial court. During cross-examination, this witness stated that he did not know Shami (Petitioner), hence, he could not say that whether it was the petitioner who ran away after leaving the tempo at the spot or not. 16. Thus, the statements of the aforesaid witnesses recorded before the trial court would nowhere indicate in consistent manner that at the time of alleged accident, the tempo (vehicle) was being driven by the petitioner. The evidence produced by the prosecution before the trial court appears to be based on hearsay and even the witnesses, who were produced as eye witnesses, have not supported the story of the prosecution. It is settled proposition of law that in criminal jurisprudence, the prosecution is required to prove the charges against the accused beyond reasonable doubt. However, in the instant case, this Court finds that on account of contradictory and inconsistent statements given by the witnesses, the prosecution has utterly failed to prove [2025:RJ-JP:40965] (7 of 8) [CRLR-785/2007] the charges against the petitioner. Hence, there was no valid and legitimate basis available with the trial court to hold the petitioner guilty of charges framed against him and thereafter, to convict and sentence him in the manner as referred to hereinabove. 17. The appellate court, in its judgment and order dated 19.07.2007, has heavily relied upon the notice under Section 133 of the MV Act, in which the petitioner was shown as driver. However, even the investigating officer, Chiranji Lal (P.W.3) has given irrational statement that name of the petitioner was not filled by the registered owner of the vehicle in the notice under Section 133 of the MV Act. Further, investigating officer stated that name of driver of the vehicle was written in the notice by somebody else at the instance of registered owner of the vehicle, but he could not make any definite statement with regard to the person who filled in the name of the petitioner in notice under Section 133 of the MV Act. Even the registered owner of the vehicle, who could be said to be the best witness to prove the details of notice under Section 133 of the MV Act was not produced by the prosecution in the evidence before the trial court. Hence, it becomes clear that even the appellate court has not appreciated the evidence in right perspective. 18. For the reasons mentioned hereinabove and after analysis of the evidence on record, this Court holds that the prosecution has failed to prove charges framed against the petitioner beyond reasonable doubt and, therefore, both the courts below erred in law in holding the petitioner guilty of the [2025:RJ-JP:40965] (8 of 8) [CRLR-785/2007] charges framed against him for offences punishable under Sections 279 and 304A IPC. 19. In the result, instant criminal revision petition is allowed. Judgment and order dated 19.07.2007 passed by the appellate court as also judgment and order dated 27.01.2005 passed by the trial court are hereby quashed and set aside. The petitioner is acquitted of the charges framed against him for offences punishable under Sections 279 and 304 IPC. Since the petitioner is already on bail, therefore, he need not surrender. Bail bonds of the petitioner stand discharged. 20. The petitioner is directed to furnish personal bond in the sum of Rs. 50,000/- and a surety bond in the like amount in accordance with the provisions of Section 437A of the Code of Criminal Procedure, 1973 (Cr.P.C.)/481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) before the Registrar (Judicial) of this Court within four weeks from today to the effect that in the event of filing of special leave petition against this judgment or on grant of leave, the petitioner, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court. The bail bonds will be effective for a period of six months. 21. Records of the courts below be sent back along with copy of this judgment. (ANAND SHARMA),J MANOJ NARWANI /7