Himachal Pradesh High Court
Manohar Lal vs State Of H.P on 28 May, 2025
( 2025:HHC:16376 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 4115 of 2013 Reserved on: 02.05.2025 Date of Decision: 28.05.2025.
Manohar Lal ...Petitioner
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Vinay Thakur, Advocate. For the Respondent/State: Mr. Jitender Sharma, Additional Advocate General.
Rakesh Kainthla, Judge The present revision is directed against the Judgment dated 08.07.2013, passed by learned Sessions Judge (F), Shimla (learned Appellate Court), vide which the judgment of conviction dated 30.09.2010 and order of sentence dated 04.10.2010, passed by learned Judicial Magistrate First Class-1, Shimla, District Shimla (learned Trial Court) were upheld. (The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2 ( 2025:HHC:16376 ) parties shall hereinafter be referred to in the same manner in which they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused for the commission of offences punishable under Sections 279, 337 & 304-A of the Indian Penal Code ("in short IPC"). It was asserted that the informant, Devinder Sharma (PW3), had gone to Tara Hall School to bring Digvijay, son of Ashwani Sud, on 24.03.1999. An HRTC Bus bearing registration No. HP- 07- 1822 came from the Victory Tunnel towards Tara Hall School at high speed. The informant, Devinder Sharma (PW3), and Digvijay stood on the roadside. However, the driver drove the bus negligently; the rear side of the bus hit the legs of the informant, Devinder Sharma (PW3), and the right side struck Digvijay, leading to a fracture of his head. Digvijay fell onto the road. The informant and Digvijay were taken to the hospital; however, Digvijay succumbed to his injuries and was declared dead. An intimation was given to the police, who sent ASI Mohinder Singh to the hospital for verification. He recorded the statement of Devinder Sharma (Ex-PW 3/A) and sent it to the police station, where FIR (PW 14/A) was registered. He 3 ( 2025:HHC:16376 ) prepared the site plan and seized the bus bearing registration No. HP- 07- 1822, along with the documents vide seizure memo (Ex- PW 3/B). He applied to conduct a medical examination of the injured, Devinder Sharma. Dr. Krishan Anand (PW9) conducted the medical examination of Devinder Sharma and found that he had sustained simple injuries that could have been caused within 24 hours of examination. He issued MLC (Ex- PW 9/A). ASI Mohinder Singh conducted the inquest on the dead body and prepared the reports(Ex-PW12/B to Ex-PW 12/D). Dr. Piyush Kapila (PW 12) conducted the postmortem examination of Digvijay and found that the cause of death was ante-mortem injuries, including a crushed injury to the brain, probably caused by being run over by a motor vehicle. He issued the report (Ex- PW 12/E). ASI Vidya Sagar (PW 5) conducted the mechanical examination of the bus and found that there was no mechanical defect in the vehicle that could have led to the accident. The statements of the remaining witnesses were recorded as per the version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court.
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3. Learned Trial Court put the notice of accusation to the accused for the commission of offences punishable under Sections 279, 337 and 304-A of IPC, to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 15 witnesses to prove its case. Constable Kishori Lal (PW1) is an eyewitness. Sanjay Sood (PW2) reached the spot after hearing about the accident and witnessed various recoveries. Devinder Sharma (PW3) is an eyewitness/victim. Ashwani Sood (PW4) is the father of the victim. ASI Vidya Sagar (PW5) conducted the mechanical examination of the bus. Narinder Singh (PW6) was the conductor in the bus. Devinder Kumar (PW7) is the witness to the handing over of the bus on Sapurdari. Santosh Kumar (PW8) took the photographs. Dr. Krishan Anand (PW9) conducted the medical examination of the victim. Joginder Singh (PW10) proved that the accused was driving the bus. Harbans Kumar (PW11) was working as a traffic In-charge to whom the bus was handed over on Sapurdari. Piyush Kapila (PW12) conducted the postmortem examination. Constable Daulat Ram (PW13) proved that he was deputed as a Traffic Constable. Constable Pramodh 5 ( 2025:HHC:16376 ) Singh (PW14) signed the FIR (Ex-PW14/A). Balak Ram (PW15) prepared the challan.
5. The accused in his statement recorded under Section 313 of Cr. P.C. admitted that he was driving the bus bearing Registration No. HP-07-1822 on 24.03.1999. He denied that the bus was being driven at a high speed. He denied the rest of the prosecution's case. He claimed that he was innocent. However, he did not produce any defence evidence.
6. Learned Trial Court vide Judgment dated 01.07.2003 held that the prosecution's evidence was sufficient to prove that the accused was driving the bus in a rash or negligent manner. Hence, the accused was acquitted.
7. Being aggrieved by the judgment dated 01.07.2003 passed by learned Trial Court, the State filed an appeal before this Court, which was registered as Criminal Appeal No.522 of 2003. This Court held that the learned Trial Court had not discussed the evidence, hence, the matter was remanded to the learned Trial Court with a direction to decide it afresh.
8. Learned Trial Court held that the accused must have noticed the informant and the child walking on the roadside. It 6 ( 2025:HHC:16376 ) was incumbent upon him to take precautions while driving the bus. He failed to do so. Non-examination of the Investigating Officer is not material because the photographs depict the spot position. The photographs showed that the accused had brought the rear left portion of the bus to the extreme corner of the road where the deceased was walking with the informant. The defence version that the deceased slipped and came under the tyre of the bus was not probable. Therefore, learned Trial Court convicted the accused of the commission of offences punishable under Sections 279, 337 and 304-A of IPC and sentenced him to undergo simple imprisonment for three months, pay fine of ₹1,000/- and in default of payment of fine to undergo further simple imprisonment for 22 days for the commission of offence punishable under Section 279 of IPC. The learned Trial Court also sentenced the accused to undergo simple imprisonment for three months, pay a fine of ₹500/- and in default of payment of fine to undergo further simple imprisonment for 20 days for the commission of an offence punishable under Section 337 of IPC. Learned Trial Court also sentenced the accused to undergo simple imprisonment for one year, pay a fine of ₹3,000/-, and in default of payment of fine to undergo further simple 7 ( 2025:HHC:16376 ) imprisonment for three months for the commission of an offence punishable under Section 304-A of IPC. It was ordered that all the substantive sentences of imprisonment shall run concurrently.
9. Being aggrieved by the judgment and order passed by learned Trial Court, the accused filed an appeal which was decided by the learned Sessions Judge (F), Shimla (learned Appellate Court). Learned Appellate Court held that speed is not the sole criterion to determine rashness or negligence. The testimony of the informant was corroborated by his previous statement made under Section 154 of Cr. P.C. The statement was also corroborated by the testimony of Constable Kishori Lal (PW1) and the statement of the Doctor who found the injuries on the legs of the informant. The photographs showed that the bus was taken to the extreme left side. There was a huge rush, and the accused should have been more careful while driving the bus. Non-examination of the Investigating Officer was not sufficient to doubt the prosecution's case. There was no infirmity in the judgment and order passed by the learned Trial Court. Therefore, the appeal was dismissed and the judgment and order passed by the learned Trial Court were upheld.
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10. Being aggrieved from the judgment and order passed by the learned Courts below, the accused has filed the present revision, asserting that the learned Courts below did not properly appreciate the material placed before them. There was insufficient evidence to show that the accused was driving the bus in a rash and negligent manner. Learned Courts below failed to consider the contradictions in the testimonies of the prosecution's witnesses. The informant-injured fell on the road. It was duly proved that there was a speed breaker, which shows that the speed of the bus could not have been high. Therefore, it was prayed that the present petition be allowed and the judgments and order passed by the learned Courts below be set aside.
11. I have heard Mr. Vinay Thakur, learned counsel, for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent-State.
12. Mr. Vinay Thakur, learned counsel, for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. Learned Courts below erred in appreciating the evidence. There was no evidence to show the rashness or the 9 ( 2025:HHC:16376 ) negligence of the accused. The defence version that the accused was driving the bus carefully, and the informant's foot slipped, was highly probable. The Investigating Officer was not examined, and the contradictions were not proved. Hence, the learned Courts below could not have ignored the statement of the conductor of the bus, which ruled out any negligence on the part of the accused. Therefore, he prayed that the present petition be allowed and the judgments and order passed by learned Courts below be set aside. He relied upon the judgment of the Hon'ble Supreme Court in State of Kerala Vs. Retnakaran & Ors. [2000 0 Supreme (Ker) 474], in support of his submission.
13. Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent-State, submitted that the learned Courts below had properly appreciated the evidence and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. The non-examination of the Investigating Officer is not fatal because no prejudice was caused to the accused. Therefore, he prayed that the present petition be dismissed.
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14. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
15. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207: -
"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
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16. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was observed:
"13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularity of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460, where the scope of Section 397 has been considered and succinctly explained as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.
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13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC."
17. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
18. Constable Kishori Lal (PW1) stated that the children were going to their home at 02:00 pm on 24.03.1999. The bus bearing Registration No. HP-07-1822 arrived on the spot, which hit the child and the person accompanying him. The child sustained injuries to the head, and the person walking beside him sustained injuries to the leg. The accused was driving the bus. The injured were sent to the hospital. The accident occurred due to the high speed and negligence of the accused. He stated in his cross-examination that there was a huge rush of people and the vehicle, and he was clearing the traffic on the spot. He 13 ( 2025:HHC:16376 ) reached the spot after hearing the noise. Many people had gathered at the spot. The passenger also came out of the bus. There was a speed breaker and a curve at the place of the accident. He admitted that the bus coming from Victory Tunnel had to negotiate the curve from right to left, and its rear side would move towards the right side. He denied that there was any negligence on the part of the accused.
19. The cross-examination of this witness makes his testimony in the examination-in-chief doubtful. He claimed in the examination-in-chief that the accident occurred due to the high speed of the bus. However, he admitted in his cross- examination that there was a huge rush. He also admitted the existence of a speed breaker on the spot. He has not explained how the bus could have been driven at a high speed when there was a huge rush, a speed breaker and a curve at the place of the accident. Further, he stated that he reached the spot after hearing the noise, which makes it doubtful that he had witnessed the actual accident.
20. Narinder Singh (PW6), conductor, stated that the bus was going from the Victory Tunnel. 5-6 passengers were 14 ( 2025:HHC:16376 ) travelling on the bus. When the bus reached near Tara Hall School, Shimla, a person was sitting on the railing with a child. The child fell, and the passengers shouted to stop the bus. The driver stopped the bus. They came out of the bus and saw that the foot of a person had slipped on the railing. The child was taken to the hospital. He was permitted to be cross-examined. He stated that he was issuing the tickets at the time of the accident. He had not seen the person sitting on the railing, and he saw after the noise that the person had fallen from the railing. He denied that the accident occurred due to the negligence of the accused or that the accused was driving the bus at a high speed. He stated in his cross-examination that the people said that the person had climbed on the railing with the child. He admitted that the accident occurred due to the negligence of the person because he had climbed onto the railing.
21. The testimony of this witness does not support the prosecution's case. He denied that the accident occurred due to the negligence of the accused; rather, he stated that the accident occurred due to the negligence of the person who had climbed on 15 ( 2025:HHC:16376 ) the railing. Thus, no advantage can be derived from his testimony.
22. The informant, Devinder Shamra, stated that he and Digvijay were walking near the railing. A bus came from the Victory Tunnel at high speed. He and Digvijay stood near the railing. The rear side of the bus hit him. He had caught hold of Digvijay, who became free after the impact. Digvijay fell, and the rear tyre hit him. He suffered a fracture to the head. The accident occurred due to the high speed and negligence of the accused. The driver stopped the bus after a considerable distance. He stated in his cross-examination that there was a huge rush of people and the vehicle. He was walking towards the right side of the road. Many vehicles were moving. He did not remember that there was a speed breaker on the spot. He had caught hold of the child with his left hand. He denied that he slipped, and the child came under the tyre of the bus.
23. This witness asserted that the cause of the accident was the high speed of the bus. However, he also admitted that there was a huge rush. Constable Kishori Lal (PW1) admitted that there was a speed breaker. Hence, the speed of the bus could not 16 ( 2025:HHC:16376 ) have been high, and the testimony of the informant that the accident occurred due to the high speed of the bus is not acceptable.
24. In fact, the learned Courts below also held that the speed of the bus could not have been high. However, they concluded that the accused might have seen the informant and the deceased, and he was duty-bound to drive the bus carefully. There can be no dispute with the principle that a driver is supposed to drive the bus carefully, especially when there is a huge rush of people and the vehicle. However, it has also to be proved that there was carelessness of the driver which resulted in the accident, and the carelessness cannot be assumed merely because the accident occurred. In the present case, the exact manner of the accident has not been established. As per the prosecution's witnesses, the bus was negotiating the curve, therefore, its rear side had to be away from the road, as admitted by Constable Kishori Lal (PW1) and not near the road. Therefore, the rear side of the vehicle could not hit a person walking towards the left side of the bus. The prosecution's case is that the rear side of the bus had hit the informant and the child. A driver is supposed to look ahead, and it has not been explained 17 ( 2025:HHC:16376 ) how he could have visualised the person walking towards his left on the road. It is not even the case of the prosecution that insufficient space was left, which would crush the pedestrian between the bus and the railing. The photograph shows that there was sufficient space at the place of the accident. Thus, the prosecution has not proved the negligence of the accused, which led to the accident.
25. The prosecution did not examine the Investigating Officer to prove the site plan to show the factual position on the spot. Learned Courts below relied upon the photographs to hold the negligence of the accused, but photographs do not depict that there was insufficient space; rather, the photographs show sufficient space between the bus and the railing. Therefore, the photographs do not depict any negligence on the part of the accused.
26. Therefore, the evidence on the record was insufficient to infer the rashness or negligence. No person deposed about any duty cast upon the driver, and its breach committed by the accused. It appears that the learned Courts below proceeded only on the basis that the accused was 18 ( 2025:HHC:16376 ) negligent because the accident was caused, which is not correct. The prosecution has to prove that the breach of duty of the accused led to the accident, and the accused cannot be held liable simply because the accident took place. Hence, the learned Trial Court erred in convicting and sentencing the accused, and the learned Appellate Court erred in upholding the judgment and the order. Consequently, the judgments and order passed by learned Courts below are not sustainable.
27. In view of the above, the present petition is allowed. Judgments and order passed by the learned Courts below are ordered to be set aside. The accused is acquitted of the commission of the offences punishable under Sections 279, 337 and 304-A of the IPC. The fine amount, if deposited be refunded after the expiry of the limitation, and in case of appeal, the same be dealt with as per the order of the Hon'ble Supreme Court.
28. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner/accused is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four 19 ( 2025:HHC:16376 ) weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the petitioner/accused on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
29. A copy of this judgment, along with the record of the learned Trial Court, be sent back forthwith. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 28th May, 2025 (Shamsh Tabrez)