1. The revision has arisen out of judgment dated 12.11.2003 passed by learned Additional Sessions Judge No. 2 Alwar, in criminal appeal No.34/2003, whereby he confirmed the judgment dated 30.6.2003 passed by learned Judicial Magistrate No.4, Alwar, whereby, the petitioner, herein, was convicted and sentenced as follows:
U/s 279 IPC - Six months' S.I. with fine of Rs.1000/-; in default of payment thereof, to undergo 30 days imprisonment.
U/s 337 IPC - Six months' S.I. with fine of Rs. 500/- ; in default of payment thereof, to undergo 15 days S.I.
U/s 338 IPC - Two years' S.I. with fine of Rs. 1000/- ; in default of payment thereof, to undergo 30 days S.I.
U/s 304 IPC - Two years' S.I. wit
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fine of Rs. 2500/- ; in default of payment thereof, to undergo 40 days S.I.All the sentences were ordered to run concurrently.2. In brief, facts of the case are that on 26.10.1996 complainant Ram Ratan (PW-1) orally informed SHO Police Station Sadar (Alwar) that he along with Balraj, Shriphal, Khiladi and Amar Singh was coming back after purchaing four buffaloes from village Dhol (Haryana) in Matador No. HR-46- 7953, driven by appellant Madan. When they reached near Chirghar (slaughter house), by rash and negligent driving at about 12 mid-night, the driver made the vehicle over-turned, due to which two buffaloes died on the spot and all the five persons sitting in the vehicle were injured. All the injured were brought to the hospital, Alwar where at about 4 a.m. Khiladi succumbed. On this information, FIR No.315/1996 (EX-P1) was registered at 9.15 a.m. After due investigation, a charge sheet was submitted. Learned trial Court read over accusation of the charges under Sections 279, 337, 338 and 304-A IPC to the appellant. Appellant denied the accusation and claimed trial. Five witnesses were examined by prosecution and 15 documents were exhibited. Appellant was examined under Section 313 Cr.P.C. by the trial court. Appellant/petitioner denied the evidence and stated that evidence adduced by prosecution is false and he has been wrongly implicated in the matter. One witness Jagdish (DW-1) was examined on behalf of defence. No documentary evidence was exhibited by defence. Learned trial court after hearing the parties passed the judgment dated 30.6.2003 and convicted and sentenced the appellant, as mentioned herein above. On appeal, Learned Additional Sessions Judge No.2 Alwar, affirmed the sentence vide judgment dated 12.11.2003.3. Learned counsel for petitioner submits that in the instant matter only complainant Ram Ratan (PW-1) is providing an ocular description of the incident. None of the other eyewitnesses have been examined by prosecution.4. Ram Ratan (PW-1) has improved his version from his earlier statement given in FIR (Ex.P-12). He does not say in Ex-P12 anything about speed of the vehicle, whereas in the statement before court he states that vehicle was being driven at the speed of 90-95 kms. per hour. In FIR (Ex.P-12), he does not state that he had instructed the driver to drive the vehicle slowly, but he did not follow it, whereas in the statement recorded before court he has stated that despite of his instruction, driver did not slow down the vehicle.5. Learned counsel submits that the trial court has convicted the appellant solely on the basis of site memo (Ex.P-2) but the same has not been duly proved by the prosecution. Balraj and Sudarshan are said to be attesting witnesses of this memo but none of them has been examined. Moreover, Investigating Officer who prepared this memo has also not been examined by the prosecution. This document has been exhibited at the time or recording of evidence by Ram Ratan (PW-1) but Ram Ratan (PW-1) has stated in cross-examination that he was not on the spot when this site memo was prepared. His signatures on this memo were obtained in the hospital. Thus, finding of the trial court based on this memo is misconceived and unfounded.6. Learned counsel further submits that Badlu Ram (PW-5) who conducted mechanical examination of the vehicle has opined in cross-examination that the manner in which the vehicle has dragged on the side of the road, it may be inferred that tierod of the vehicle might have been broken or stearing of the vehicle might have failed. Opinion of this witness is sufficient to doubt that the accident may have occurred on account of sudden mechanical failure.7. Per contra, learned Public Prosecutor submits that evidence rendered by Ram Ratan (PW-1) has not been shaken in any way. There is no reason on record to disbelieve his statement which is corroborated by the site memo (Ex.P2). Badlu Ram (PW-5) has also opined in his cross-examination that if the vehicle happens to be in high speed, then also the vehicle may have side tracked in the manner stated in the site memo.8. I have given thoughtful consideration to the rival submissions and gone through the material available on record.9. It is undisputed that out of the five persons who were plying in the vehicle, Khiladi died later on. Out of the rest of four persons, only one Ram Ratan has been examined. Three others Balram, Shriphal and Amar Singh have not been examined. I have also gone through the statement rendered by Ram Ratan (PW-1) and find that he has improved his statement with regard to certain facts.10. Learned trial court has based his findings mainly on the site memo prepared by police during the investigation As per site memo (Ex.P2), it was prepared in presence of two persons Balraj and Sudarshan, but none of them has been examined by the prosecution. The police officer, who prepared this memo, has also not been examined. So far as Ram Ratan (PW-1) is concerned, he has stated that "A to B" his signatures on this memo were obtained by police at hospital and at the time of preparation of this memo, he was not present at the site of incident. Thus, site memo (Ex.P2), though may have been exhibited, but cannot be held to be duly proved by adducing necessary evidence. Consequently the averments made in site memo ( Ex-P2) cannot be admitted in evidence. Opinion of mechanic (PW-5) Bagdu Ram is two fold. As per his opinion, both things are possible. The accident may have occurred due to sudden mechanical failure. It may also have occurred due to high speed of the vehicle. Though opinion of PW-5 cannot be substituted with the evidence, yet the opinion of witness who is said to be an expert cannot be ignored at all. It is established principle of law that when two possibilities are probable, the possibility favouring accused should be inferred and benefit of doubt should be extended to him.11. So far as statement of Ram Ratan (PW-1) is concerned, his statements are containing certain improvements as pointed out by learned counsel. When no other corroborative evidence is available, the improvements found made in the statement of Ram Ratan (PW-1), becomes more important and render his testimony in credible.12. Thus, findings of learned trial court and Appellate Court are not based on cogent and trustworthy evidence and as a result not sustainable.13. Therefore revision is allowed. Judgment dated 30.6.2003 passed by learned trial court and judgment dated 12.11.2003 passed by the Appellate Court are set aside. Appellant is acquitted of the charge for offences under Section 279, 337, 338 an d 304-A IPC.14. The petition is disposed of accordingly.
"2017 (2) CriCC 394, 2017 (5) RCR(Cri) 233,"