Himachal Pradesh High Court
Kaushlainder Singh Alias Bablu vs State Of H.P on 21 June, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
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Cr.Revision No. 102 of 2007.
Judgment reserved on : 4.5.2016
Date of decision: 21.6.2016
of
Kaushlainder Singh alias Bablu ..... Petitioner.
Vs.
State of H.P.
rt .... Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Hamender Chandel, Advocate.
For the Respondent : Mr. Pankaj Negi and Mr. Puneet
Razta, Deputy Advocate Generals.
Justice Vivek Singh Thakur, J.
This petition has been preferred by petitioner against his conviction for offences punishable under Sections 279, 304-A, IPC vide judgment dated 20.6.2007 passed by learned Sessions Judge, Shimla in Criminal Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...2...
appeal No.29-s/10 of 2005, affirming judgment dated 25.7.2005 passed by learned Judicial Magistrate Ist Class .
(4), Shimla in Cr. Case No.49/2 of 2005/02 wherein the petitioner has been convicted under Section 304-A IPC and sentenced to undergo simple imprisonment for two years and no separate sentence under Section 279 IPC has been of awarded.
2. Prosecution case in brief is that SI Kanwar rt Singh was present on traffic barrier, Shoghi on 9.4.2002. At about 10.15 a.m., he was informed by occupants of vehicles passing through the barrier that driver of Maruti Car No. HR-03B-9112 had run from the spot towards Shimla after hitting a pedestrian in Shoghi Bazar. After this information, S.I. Kanwar Singh had recorded rapat No.3 dated 9.4.2002 in PAR, Shoghi. The Maruti Car No.HR-03B-9112 was brought back by PW-12 constable Rajinder Kumar to PAR, Shoghi. At that time front windscreen of car was broken and one person namely Manpreet Singh (PW-11) sitting in the car, had informed that driver Bablu of the car, an employee of vehicle owner company namely Surya Telecom ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...3...
Co. Ltd., had gone towards Shimla after parking vehicle on the side of road.
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3. V.H.F message was received in Police Station Boileauganj from Traffic barrier, Shoghi that one Maruti Car No.HR-03B-9112 after hitting a person in Shogi Bazar had fled towards Shimla. Consequently a Rapat No.12 dated of 9.4.2002 was recorded by PW-11 constable Babu Ram.
PW-9 HC Sohan Singh, Investigating Officer had recorded rt statement Ex.PW-5/A of PW-5 Ishwar Thakur under Section 154 Cr.P.C on the basis of which FIR Ex.PW-8/A was registered under Sections 279, 304-A and 201 IPC at Police Station, Boileauganj.
4. As per FIR, at the time of crossing road in Shoghi main Bazar, Master Narain Singh was hit by a Maruti Car No.HR-03B-9112 coming from down hill with high speed and as a result of which Master Narain Singh had fallen on the road receiving injuries on the head, right hand, left leg and other part of the body and had become unconscious. Narain Singh was taken to Hospital at Shoghi and later on was referred to I.G.M.C., Shimla. Driver of Maruti Car No.HR-03B-9112 had fled from the spot ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...4...
immediately after the accident. It is alleged that accident had occurred on account of rash and negligent driving of .
petitioner.
5. Master Narain Singh was referred to PGI, Chandigarh where he succumbed to injuries on 9.4.2002.
On completion of investigation, challan was submitted of against petitioner. Notice of accusation was put to petitioner for offences punishable under Sections 279, 304- rt A IPC. Petitioner had denied the accusation and claimed trial.
6. Prosecution has examined twelve witnesses in support of its case. Thereafter, statement of petitioner was recorded under Section 313 Cr.P.C. in which he pleaded that he stopped the car but he had to flee as people attacked him. Petitioner did not lead any evidence in defence.
7. On conclusion of trial, learned Judicial Magistrate Ist Class convicted the petitioner for offences punishable under Sections 279, 304-A IPC vide judgment dated 25.7.2005. Petitioner was sentenced to undergo ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...5...
simple imprisonment for two years under Section 304-A and no separate sentence was awarded under Section 279 IPC.
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8. Petitioner had assailed his conviction and sentence by filing appeal before Learned Sessions Judge which was dismissed on 26.6.2007. Hence, present revision petition has been filed.
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9. I have heard Mr. Hamender Chandel, Advocate, learned counsel for petitioner and Mr. Pankaj Negi, learned rt Deputy Advocate General for the State and have also gone through the record. It has been submitted by learned counsel for petitioner that petitioner was driving the vehicle with due care and caution with normal speed and the accident had occurred on account of sudden appearance of deceased Narain Singh, who was in hurry and appeared suddenly from behind parked bus and accident had occurred on account of negligence of the deceased and not of petitioner. He has further submitted that by passing impugned judgment, learned trial Court has committed illegality and has misread evidence on record. He has submitted that petitioner had to flee from the spot to save his life as local persons had attacked him and had also ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...6...
broken front windscreen of the car. It has further been contended that statement of PW-11 Manpreet Singh has .
been wrongly ignored by lower Courts; hence, conviction of petitioner deserves to be interfered. Learned Deputy Advocate General, rebutting plea of petitioner, has supported impugned judgments for reasons assigned of therein and has prayed for dismissal of the appeal.
10. Learned counsel for petitioner has relied upon rt P.M. Raju vs. State of Karnataka 1977 CRI. L.J. 1545 ( Karnataka High Court), in which relying upon Mohanta Lal vs. State of Bengal 1968 ACJ 124(SC), it has been held as under:-
"9.....................In a case where a pedestrian crosses the road and does not take care to see whether any vehicle or truck is coming along the road, so that he dashes against the bus or truck the driver may not be held guilty of negligence.
This proposition of law is approved by their Lordships of the Supreme Court, although under different circumstances arising in the case, Mohanta Lal v. The State of West Bengal (1968 A.C.J. 124(SC).::: Downloaded on - 15/04/2017 20:37:40 :::HCHP
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11. Petitioner has also relied upon Mahadeo Hari Lokre vs. The State of Maharashtra 1972 CRI. L.J. .
49(SC) wherein it has been held as under:-
"4.....................If a person suddenly crosses the road the Bus Driver, however, slowly he may be of driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus Driver was negligent."
rt
12. Doctrine of res ipsa loquitur is also applicable in cases of accident. However, for applying this doctrine some basic ingredients must be present. The Apex Court in Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284 has held as under :-
"20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied.::: Downloaded on - 15/04/2017 20:37:40 :::HCHP
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This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose .
negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be of owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, rt the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
The event would not have occurred but for someone's negligence.
The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
Accused was negligent and owed a duty of care towards the victim".
13. Before applying doctrine of res ipsa loquitur, the prosecution has to prove foundational facts beyond reasonable doubt that accident had occurred for someone's negligence.
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Possibility of any other reason causing the said accident is also to be ruled out by leading cogent and reliable evidence. It is also .
to be proved that accused was negligent and owed a duty to care towards the victim.
14. Presumption of fact is also permissible but subject to limitation that there should be no possibility for any other of hypothesis on the basis of evidence on record. Presumption of fact is also rebutable by establishing defence by the accused, rt however, the accused is not required to establish his defence by proving the same beyond reasonable doubt but he has to establish preponderance of probability. It is settled law that the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
15. In the present case driving of Maruti Car No.HR-
03B-9112 by petitioner, injuries caused to deceased Master Narain Singh in accident with this car following death of injured are not in dispute. Point for determination in present case is whether the accident had occurred due to negligence of someone and if yes then whose negligence has caused the accident. As per prosecution rash and negligent ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...10...
driving of petitioner is cause of accident. Defence propounded on behalf of petitioner is that deceased Narain .
Singh was in hurry and suddenly appeared in front of car coming from behind a bus causing accident and petitioner was not rash and negligent in any manner and immediate cause of death of deceased Narain Singh is not the injury of received in accident but lack of medical treatment for which petitioner cannot be held liable to be punished under rt Section 304-A IPC.
16. Ex.PW-9/A is a site map of place of occurrence relied upon by prosecution. On the spot, width of road is 62 feet. The place of accident mark-B is on correct side of the car. From the spot distance from left is 22 feet and distance towards right side is 40 feet. The place of accident is on correct side of car but not on extreme left. Site map of place of accident indicates that the pedestrian i.e. deceased Narain Singh was not hit by car on the edge of road but almost in the middle of road, 22 feet deep from left side and at a distance of 40 feet from right sight. The only inference from site map can be drawn is that the accident at point of ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...11...
occurrence mark-B is possible only, if deceased was in motion for crossing the road.
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17. In statement Ex.PW-5/A recorded under Section 154 Cr.P.C., it has been specifically mentioned that deceased was crossing the road.
18. PW-4 Hardev Singh and PW-5 Ishwar Thakur of have been examined as eye witnesses to accident. Both of them, though have supported the case of prosecution but rt there are discrepancies and contradictions in their statement materially affecting the case of prosecution.
Both of them are related to each other and are brothers-in-
law (Jija-Sala) and were known to deceased Narain Singh since 10-15 years and childhood respectively.
19. PW-4 has stated that they were standing outside his shop at the time of accident whereas PW-5 in his examination-in-chief has stated that he was standing on the shop of his brother-in-law PW-4 and in cross-examination has stated that he was sitting inside the shop with PW-4 Hardev Singh at the time of occurrence.
20. Regarding manner of accident, PW-4 has deposed that on hitting by car deceased Narain Singh was ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...12...
flipped in air and fallen on front windscreen, breaking the glass and thereafter had fallen on the road whereas PW-5 .
has categorically stated that on hitting by car deceased Narain Singh had fallen on the road. He has not uttered a single word about breaking of front windscreen of the car by hitting deceased Narain Singh with the same either in Court of or in his statement recorded under Section 154 Cr.P.C.
21. rtPW-9 HC Sohan Singh has investigated the matter and recorded statements of witnesses. He has admitted that breaking of windscreen of the car is possible only hitting it by hard object.
22. PW-10 HC Gian Chand had mechanically examined the vehicle. He had given his report Ex.PW-9/A. He has also admitted that front screen of vehicle is too hard to break except by some hard object.
23. PW-2 Dr. Anu Dogra had treated the deceased in PHC Shoghi and after giving first aid had referred the deceased to IGMC, Shimla. PW-3 Dr. Krishan Anand who was posted in IGMC, Shimla has deposed regarding injuries on the body of the deceased. It is admitted by both these witnesses that they had not noticed any foreign material in ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...13...
the lacerated wound on the scalp of the deceased. PW-3 Dr. Krishan Anand had shown his inability to say the reason for .
which the case was referred to PGI.
24. The story put forward by prosecution that front windscreen of car was broken on striking of deceased appears to be doubtful as on medical examination by PW-2 of Dr. Anu Dogra and PW-3 Dr. Krishan Anand, they have not noticed any foreign material rt in the lacerated wound on scalp. The manner in which accident is being alleged, there is possibility of presence of some glass pieces on the body of especially in the wound caused by said hitting to the deceased. From the injuries noticed on the body of deceased by doctors, it is evident that there was no major injuries on legs which must have been caused in a accident caused in the manner it has been alleged. Medical evidence coupled with deposition of PW-4 and PW-5 regarding manner of accident indicates that true facts are not being revealed in the Court and to cover up breaking of glass of front windscreen of car, story of flipping of deceased and falling on front glass windscreen of car has been introduced.
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25. Learned Courts below have considered only one injury to reply upon the story of prosecution regarding .
manner of accident whereas the manner in which accident has been alleged, must have resulted into causing major injuries to the legs of deceased Narain Singh, whereas as per medical evidence there was no such major injuries of found on the legs of the deceased. Learned Courts below have failed to read the entire statements of medical experts rt and have relied upon only a part on medical evidence. In absence of major injuries in lower portion of body of deceased, it is difficult to hold that car had struck with deceased in such a high speed, resulting to flip him in air and fall upon the front windscreen of car, rather preponderance and probability of defence is corroborated from medical evidence.
26. Petitioner has propounded defence that deceased was in hurry and during crossing of road in hurry he had suddenly appeared from behind the bus in front of car and it is his negligence which has caused accident resulting into his death. PW-1 Vinod Kumar with whom deceased Narain Singh had come to Shoghi Bazar to purchase some ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...15...
sweets, was waiting for him at a some distance and he has admitted that he and deceased Narain Singh were in hurry .
on the day of occurrence because deceased Narain Singh has to join his duty in school at 10.00 O'clock and this witness has also to bring his daughter from his house for leaving her in school. He has admitted that he went in of search of deceased Narain Singh so as to leave Shoghi well in time. Prosecution has also examined PW-11 Manpreet rt Singh who was accompanying petitioner in the car at the time of accident. He has deposed that deceased had suddenly appeared on the road from behind the bus who was in hurry. This witness was declared hostile and during cross-examination by learned Public Prosecutor has admitted that he and petitioner was employee of the company owing the car involved in the accident on the day of occurrence.
27. It is settled legal proposition that evidence of hostile witness can not be brushed aside in toto but can be considered for ascertaining truth with corroboration other evidence on record upon a careful scrutiny and further statement of witness is to be read as a whole and portion of ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...16...
statement is not to be picked up according to suitability of either party. It is also settled law that statement of .
interested witnesses is not to be discarded on the ground that the witness was interested witness but is to be tested with corroboration for his testimony by other evidence on record.
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28. PW-1 is not related to the petitioner in any manner but is one of associate of deceased Narain Singh.
rt PW-11 Manpreet Singh being a colleague of petitioner at the time of accident may be treated as interested witness but his version that deceased Narain Singh was crossing the road in hurry is corroborated by statement of PW-1 Vinod Kumar. Combined reading of statements of PW-1 and PW-
11 coupled with site map Ex.PW-9/A and also Ex.PW-5/A statement recorded under Section 154 Cr.P.C., petitioner has established his defence by preponderance of probability.
29. Every accident is not always on account of negligence of someone and accident causing death cannot be presumed to have been caused always on account of negligence of driver. Each and every case is to be decided on the basis of facts and circumstances of case. The Courts should not be ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...17...
swayed by the factum of death of victim but the case should be decided within the parameter of criminal jurispendence in .
consonance with pronouncement of the Hon'ble Apex Court.
30. Learned lower Courts have applied doctrine of res ipsa loquitur in present case. Before application of res ipsa loquitur learned lower Courts below had to ascertain that of foundational facts required for application of said doctrine has been established on record. Learned lower Courts below have rt ignored the statements of PW-1 and PW-11 establishing the facts that deceased Narain Singh was in hurry while crossing the road.
Site map Ex.PW-9/A has also been ignored for determining location of accident for drawing inference regarding manner of accident. For application of res ipsa loquitur, the evidence on record must rule out possibility of someone else negligence except driver. In present case, there is a parallel hypothesis on record indicating crossing of road by deceased Narain Singh in hurry and suddenly coming in front of car.
31. In view of above discussion, findings as to rash and negligence on the part of petitioner causing death of deceased Narain Singh are incorrect and are based on misreading of evidence ignoring settled law and ratio laid down by the Apex Court. Therefore, present petition is allowed and conviction of ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP ...18...
petitioner under Sections 279 and 304-A IPC and sentence imposed under Section 304-A IPC is set aside. Bail bond to be .
cancelled.
(Vivek Singh Thakur ) Judge.
of June 21, 2016 (sks) rt ::: Downloaded on - 15/04/2017 20:37:40 :::HCHP