Himachal Pradesh High Court
Khem Chand vs State Of H.P on 9 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 25 of 2010
Date of Decision: 9.9.2016
_______________________________________________________
.
[
Khem Chand ......Petitioner.
Versus
State of H.P. ...Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes
For the petitioner: Mr. Lakshay Thakur, Advocate.
For the respondent: Mr. Rupinder Singh Thakur, Additional
rt Advocate General, for the State.
_________________________________________________________
Sandeep Sharma, J. (Oral)
Present criminal revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment passed by ld. Sessions Judge, Mandi, HP, dated 24.12.2009 in criminal appeal No. 40 of 2006, affirming the judgment passed by the ld. Judicial Magistrate, Ist Class, Court No.1, Mandi, H.P., dated 28.9.2006, passed in Cr. Case No. 253-II/98(97), whereby the petitioner-accused has been convicted as under:-
"Under Section 279 of IPC, the petitioner-accused is sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 300, in default of payment of fine, to further undergo simple imprisonment for 15 days, and ;
Under Section 337 of IPC to undergo three months' simple imprisonment and to pay a fine of Rs. 300/-, in Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -2-
default of payment of fine to further undergo simple imprisonment for 15 days and;
Further sentenced under Section 338 of IPC to undergo simple imprisonment for 6 months and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo .
simple imprisonment for one month and;
Further sentenced under Section 304-A of IPC to undergo simple imprisonment for 1 year and to pay a fine of Rs. 500/- in default of payment of fine to further undergo simple imprisonment of one month."
2. Briefly stated facts as emerged from the record are that the of petitioner-accused (In short "accused No.2) was driving Bus No. HP-01- 1643, whereas another bus bearing No. DL-1P-6566 was being driven by person namely Ranjit Singh (In short "accused No.1) on 17.6.1996. It also rt emerge from the record that when accused No.1 signaled accused No.2 to take pass from his bus, he in the process of overtaking bus No. DL-IP-6566, hit his bus against the rock on driver side, as a result of which, passengers travelling in that bus, sustained injuries and two of them died. Accordingly, police after having received information, reached at the spot and sent Rukka Ext.PW13/D to the police Station, on the basis of which, formal FIR was registered against the accused persons. During investigation, it revealed that on 17.6.1996, at about 7:30 a.m., bus being driven by accused No.1 was on its way from Mandi to Manali and another bus was being followed/driven by accused No.2. Investigation further revealed that both the buses were being driven in high speed towards Manali and the drivers/accused were in competition and were trying to overtake each other but when they ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -3- reached near Gurudwara at Jaral Pandoh, accused No.1 gave signal to accused No.2 to overtake his bus on a slight curve but he did not .
leave the sufficient space for another bus to move forward. Despite aforesaid, accused No.2-petitioner made an attempt to take pass from the bus of accused No.1, as a result of which, bus being driven by accused No.2 in rash and negligent manner, struck against the of boulder/rock on the right side. Passengers traveling in the bus suffered injuries on their persons and two persons died. Police prepared spot map Ext.PW13/C and also got clicked photograph Ext.PW11/A to rt Ext.PW11/P, negatives whereof are Ext.PW11/A-1 to Ext.PW11/P-16. I.O.
PW13 after seizing the bus being driven by Accused No.2 and documents thereof vide Fard Ext.PW2/A and also seized the offending bus being driven by accused No.1 vide separate Fard. I.O. after completion of codal formalities, also recorded the statements of witnesses under Section 161. I.O. also got the offending vehicle mechanically examined from PW10 and obtained report Ext.PW10/A and Ext.PW10/B. Similarly, injured persons were also got medically examined at Zonal Hospital Mandi and obtained MLCs. Injured persons Sonam Shering and Bimmi Chhabra succumbed to injuries in the hospital. PW12 filled up the form-25.35 Ext..PW-12/A and Ext.PW 12/A and Ext.PW12/B and got conducted the post mortem of the body of Bimmi Chhabra, PW4, vide his report Ext.PW4/A opined that she died ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -4- due to extensive head injury similarly, the post mortem of the body of Sonam Shering was also conducted by PW13, who opined that she also .
died due to ante-mortem injuries. Police after completion of investigation came to conclusion that accused are guilty of having committed offences under Sections 279, 337, 338 , 304-A. At this stage, it may be noticed that accused No.1 was declared proclaimed of offender. Thereafter learned trial Court after having satisfied that prima facie case exists against accused No.2 , put notice of accusation for committing the offence as mentioned above, however, accused rt No.2-petitioner pleaded not guilty and claimed trial. But fact remains that he did not lead any evidence in this defence. Learned trial Court on the basis of material available on record found accused No.2 i.e. present petitioner guilty and sentenced him as per detail already given above.
3. Feeling aggrieved and dis-satisfied with the judgment passed by the learned trial Court, present petitioner-accused preferred criminal appeal before the Court of learned Sessions Judge, Mandi, which was dismissed vide judgment dated 24.12.2009. Hence, this criminal revision petition before this Court by the petitioner-accused No.1.
4. Mr. Lakshay Thakur, Advocate, representing the petitioner-
accused vehemently argued that the judgments passed by the learned ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -5- courts below are not sustainable in the eye of law as the same are not based upon the correct appreciation of record. Mr. Thakur, contended .
that bare perusal of the impugned judgments suggests that courts below while passing the judgment have mis-construed and mis-
interpreted the material placed on record as the impugned judgments are both against law and facts and as such, same deserves to be of quashed and set-aside. He further contended that ld. Courts below have erred gravely in convicting the petitioner because there is not even an iota of evidence to connect the petitioner in the commission rt of crime and therefore, the conviction has resulted in mis-carriage of justice. With a view to substantiate his argument that court below has not dealt with statements made by the prosecution witnesses in its right perspective, Mr. Thakur, invited attention of this Court to the that part of the evidence, wherein it has come in the evidence of the prosecution witnesses that the petitioner-accused was not at fault. The accident took place on account of the negligence of Ranjit Singh- accused No.1, driver of the bus, who has been declared proclaimed offender.
Mr. Thakur also contended that PW3 and PW5 have been turned hostile, whereas PW1 and 2 have admitted clearly that the fault was of Ranjit Singh i.e. accused No.1, hence, the impugned judgments are not sustainable in the eyes of law and are liable to be set-aside on this ground alone.
::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -6-5. Per contra, Mr. Rupinder Singh Thakur, learned Additional Advocate General appearing on behalf of the respondent-State, .
supported the impugned judgments passed by the courts below. Mr. Rupinder Singh Thakur, vehemently argued that bare perusal of the impugned judgments suggests that same is based upon the correct appreciation of the evidence available on record and prosecution has of been able to prove its case beyond reasonable doubt. Mr. Rupinder contended that in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted and this Court has rt very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence when it stands duly proved on record that the courts below have dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -7- glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
6. I have heard the learned counsel for the respective parties .
and gone carefully through the record.
7. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-
appreciate the evidence available on record. But in the present case, of where accused has been found guilty having committed offences under Sections 279, 337, 338 , 304-A of the Indian Penal Code, this Court rt solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case.
8. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon' ble Apex Court in Krishnan and another Vs. Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -8- court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced herein below:-
.
"8.The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the of Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent rt the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
9. Close scrutiny of the pleadings as well as statements having been made by the learned counsel for the parties clearly suggests that on 17.6.1996, bus bearing No. HP 01-1643 was being driven by accused No.2. Moreover, present petitioner accused in his statement recorded under Section 313 has not disputed the factum qua the vehicle being driven by him at that relevant time, rather, he has stated that accident occurred due to negligence of accused No.1-Ranjit Singh, who was driving vehicle No. DL-IP-6566. Since there is no dispute qua the alleged occurrence of accident as well as vehicle being driven by the present petitioner accused, this Court while examining the correctness and genuineness of the impugned judgments would only be dealing with ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP -9- the aspect of negligence, if any, on the part of the present petitioner accused, who was admittedly driving the bus bearing No. HP-01-1643 at .
the time of accident. In nutshell, case of the prosecution is that despite there being sufficient/wide road and plain road driver of bus bearing No. DL-IP-6566, did not allow the present petitioner accused to overtake his bus and as a result of which, accident took place at a place which of was too narrow for over taking. However, it has been further stated that near Gurudwara at Pandoh, the driver of bus No. DL-IP-6566, gave signal to the accused for overtaking his bus on slight curve but he did rt not leave the sufficient space for the bus to move forward as a result of which, passengers of the bus sustained injuries and two persons lost their lives. Though aforesaid narration of the facts given by the prosecution is sufficient to conclude that present petitioner-accused was quite negligent while overtaking another bus driven by accused No.1. Because it has specifically come on record that both the buses were in competition with each other and accused No.1 was not allowing present petitioner accused to overtake his bus even on the wide road. Evidence adduced on record further reveals that thereafter at place called Pandoh near Gurudwara, accused No.1 gave signal to the accused to overtake his bus on a slight curve not leaving the sufficient space for the bus to overtake/move forward. But fact remains that despite there being no sufficient space, present petitioner accused ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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made an attempt to overtake another bus, as a result of which, bus struck against the boulder/rock from the driver side. It also stands .
proved on record that due to aforesaid alleged rash and negligent act of present petitioner accused, several persons sustained injuries and two persons lost their lives.
10. In the present case, prosecution with a view to prove its of case examined as many as 13 witnesses. It also emerged from the record that I.O. namely Tulsi Ram died during the pendency of the trial and as such, prosecution re-examined PW9 ASI Surender Pal to prove rt the documents proved by Tulsi Ram.
11. PW1 Vishal Chhabra categorically stated that on 16.6.1996 he boarded the 'Harison travels' bus to Manali from Delhi and in the next morning on 17th June, 1996, when they reached near Gurudwara at Pandoh, bus bearing No. DL-IP-6566 was being driven ahead of their bus driven by accused No.2. He categorically stated that both the buses were overtaking each other and were being driven at very high speed. PW1 categorically stated that the driver of his bus was overtaking another bus and in that process, another bus while over taking hit another bus and thereafter bus hit against the boulder and as a result of which, his wife died on the spot and he also sustained injuries.
PW1 who was travelling in the bus, categorically stated that the bus in which he was traveling was being driven rashly and negligently by the ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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driver. In his cross-examination, he categorically denied suggestion put to him that offending bus was being driven at normal speed and he .
was sleeping at the time of accident. However, in his cross examination, he categorically admitted that driver of another bus had given signal to overtake his vehicle but he further stated that there was no sufficient space for overtaking. This prosecution witness of categorically denied in his cross examination that the accident took place due to rash and negligent act of the driver of the another bus.
12. Similarly, PW3 Praladh, who has also traveling in the bus rt stated that on 17.6.1996 he was traveling in the bus bearing No. HP-01- 1643, and the accused (present in the Court) was driving the said bus.
The accused was following the bus bearing No. DL-IP-6566. He further stated that driver of another bus gave him the signal for over taking and accused-present petitioner started over taking the bus and driver of another bus negotiated his bus towards their bus, as a result of which bus struck against the front side of the their bus. He stated that accident occurred due to negligence of accused No.1 (Ranjit Singh) and not by present petitioner accused. Prosecution declared this witness hostile. In his cross examination, PW3 specifically denied that petitioner-accused was driving in high speed but admitted that accused was known to him and as such he was sitting in his bus.
However, he denied that the accident took place due to rash and ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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negligent driving of the accused-petitioner. In his cross examination, he admitted that driver of another bus Ranjit Singh failed to negotiate .
the bus and hit the front side of the offending bus and in order to save accident, the accused petitioner negotiated the bus towards the hill side. He also admitted that he had sustained injuries on his arm.
13. PW5 Gurdev Kumar, an eye witness did not support the of case of the prosecution and as such, he was also declared hostile however in his cross examination, he denied that the offending vehicle was being taken into possession in his presence.
rt In his cross examination , he also stated that accused person was known to him and accident did not take place due to his negligence, rather, same occurred due to rash and negligent driving of driver of bus bearing No. DL-IP-6566.
14. PW6 Manohar Lal stated that he reached at the spot immediately after the accident when Harison bus was parked at the distance of half furlong from Gurudwara and other bus near the Gurdwara and passangers present there were saying that the accident took place due to rash and negligent driving of the bus bearing DL-IP-
6566. In his cross examination, he stated that accident did not take place due to rash and negligent driving of the present petitioner accused, who was well known to him.
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15. Conjoint reading of prosecution witnesses PW3, 5 and 6 clearly suggests that they were interested witnesses because in their .
cross-examination they have admitted that they were known to the accused-petitioner. But PW3 Prehlad who was also travelling in the bus also stated that present petitioner-accused was following the bus bearing No. DL-IP-6566, which was also on its way to Manali. He also of stated that driver of bus No. DL-IP-6566 gave accused No.2 signal for overtaking and when he started overtaking, the driver of another bus negotiated his bus towards their bus, as a result of which front side of rt the bus struck against the side of their bus. PW3 who was an eye witness though turned hostile, never denied the factum of accident, rather, took plea that accident occurred due to negligence of the driver of bus No. DL-IP-6566. Similarly, PW5 also did not support the case of the prosecution but he himself stated that he was present in shop at Pandoh, when accident took place. He categorically admitted in his cross examination that he was known to the accused and accident did not take place due to his negligence, rather, it had taken place due to rash and negligent driving of driver of another bus (DL-IP-6566).
Similarly, PW6 Manohar Lal, who was not an eye witness also stated that people/passangers were saying that accident actually occurred due to rash and negligent driving of the driver of bus No. DL-IP-6566.
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16. At this stage, it is not understood that when PW5 and PW6 were not present at the site of occurrence, how they could state that .
accident occurred due to rash and negligent driving of the driver of bus No. DL-IP-6566. Moreover, they categorically admitted in their cross examinations that they are known to the petitioner-accused. Similarly, PW3 though admitted the factum of accident and stated that he was of known to present petitioner accused. In view of the above, this Court sees no infirmity and illegality in the judgments passed by the learned courts below, whereby they solely relying upon the statement of PW1 rt came to conclusion that accident occurred due to rash and negligent driving of the accused petitioner.
17. Close scrutiny of the statement of PW1 clearly suggests that on ill fated day, drivers of both the buses were trying to overtake each other and in this process, alleged incident occurred. He specifically stated that when accused No.2- petitioner was overtaking the bus, it struck against the rock on the right side. He categorically stated that petitioner-accused was trying to over take the bus in which he was traveling and accident was caused due to rash and negligent driving of the drivers of both the buses. In his cross examination, he specifically stated that accused was overtaking the bus. He also stated that road was not sufficiently wide. He further admitted that driver of the bus bearing No. DL-IP-6566, had given signal for overtaking but there was ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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not sufficient wide road for overtaking, despite that accused made an attempt to overtake another bus. PW1 specifically denied the .
suggestion put to him that accident was caused due to the negligent act of driver of DL-IP-6566. Careful perusal of aforesaid testimony of PW1, who also lost his wife in the accident, clearly suggests that at the time of accident both the drivers were negligently driving as they were of trying to overtake each other and were in competition, but accident occurred due to sheer negligence of present petitioner-accused.
Careful perusal of cross examination conducted on PW-1 nowhere rt suggests that defence at any point of time was able to shatter the testimony of this witness, who was admittedly not person of that local area from where present petitioner actually belonged. Moreover, in his cross examination no suggestion worth the name was put to this witness that he was falsely deposing against the petitioner accused. Similarly, no suggestion qua the motive, if any, to falsely implicate the petitioner was put to him. The cross examination as well as examination in chief conducted on this witness clearly suggests that the same is confidence inspiring and he has been very very consistent, specific and candid while narrating the sequence of event actually occurred at that time of accident. If statement of PW1 is read juxtaposing the stand taken by accused himself in his statement under Section 313, statement of PW1 itself stands corroborated as far as over taking of bus by petitioner ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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accused is concerned. Petitioner accused himself in his statement under Section 313 admitted that at about 7:30AM, he was driving the .
bus HP-01-1643, which was on its way from Delhi to Manali. He also admitted that he was following another bus bearing DL No.IP-6566 being driven by Ranjit Singh (Accused No.1), who was also on its way to Manali. The petitioner also stated that bus struck against the of boulder/rock. He further stated he was overtaking the another bus being driven by the accused Ranjit Singh and during that process, his bus struck against the boulder/rock, meaning thereby, an attempt was rt being made by the accused to overtake the bus. Though, PW3 has turned hostile but careful perusal of his cross examination also suggests that bus being driven by the accused was following bus bearing DL No. IP-6566 driven by Ranjit and as such, it can be safely inferred that accused petitioner struck the ill fated bus against the rock/boulder in the process of overtaking which was admittedly moving ahead of him.
PW3 also stated that accused driver driving bus gave signal for overtaking and when he started overtaking another bus, it hit the front side of the bus. Since version of PW3 fully corroborates the statement of PW1 who also stated that accused No.1 had given signal to overtake but he further added that there was no sufficient space for overtaking meaning thereby in the process of overtaking, driver of the vehicle bearing No. DL-IP-6566 had given signal to present petitioner-accused ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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to overtake, who without realizing that there is no sufficient space to overtake, made an attempt as a result of which bus struck against the .
boulder and rock from the right side. Similarly PWs 5 and 6 though did not support the case of prosecution and also admitted that both the buses were following each other and accident occurred due to rash and negligent driving of the bus driver of DL-IP-6566, hence this court of after perusing the aforesaid prosecution witnesses especially statement of PW1, is fully convinced that at that relevant time, vehicle was being driven by the present petitioner accused in most rash and negligent rt manner, as a result of which, passengers suffered injuries and two of them lost their lives. PWs 3, 5 and 6 though admitted the factum of accident but denied that accident occurred due to rash and negligent driving but in view of their specific admission made in their cross examination that they were known to the present petitioner accused, this court really finds it difficult to accept the version put forth by them especially after seeing /perusing the candid, specific, and consistent statement given by PW1, who was admittedly not an interested witness.
18. Now at this stage, it would be fruitful to refer to the mechanical report given by PW10-Mechanic Prem Nath, who in his report Ext.PW10/B reported that driver side, front wind screen, glass, front driver window, seven windows of the body right side of the bus, backside glasses, inner body two seats, right side window top glass and ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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left side door hinges were broken/damaged. He further stated that bus HP-01-1643, was overtaking the another bus at a very high speed and .
the accident appeared to have been taken by striking the bus with sthe stone on the right side of the hill and as a result of which, the bus was badly damaged from the right side and driver had not applied the break.
of
19. Careful perusal of aforesaid opinion given by the mechanic clearly suggests that no damage was caused to the bus bearing HP 01-1643 on the left side, rather, right side of the bus i.e. driver rt side was totally damaged which clearly belies the stand taken by PW3 wherein he stated that in the process of overtaking, driver of DL-IP-6566 struck against the front side of their bus. Had bus bearing No. DL-IP-6566 struck against the left side of the bus HP-01-1643, damage would have been caused on the left side of the bus bearing No. HP-01-1643, whereas, as is clear from mechanical report, bus was badly damaged on the right side which was admittedly struck against the rock/boulder.
20. After perusing aforesaid mechanical report given by PW10, this Court is fully convinced that accident occurred due to rash and negligent driving of the present petitioner-accused No.2 who made an attempt to over take the bus from a very narrow space and in that process, his bus struck against the rock/boulder. Similarly, this Court had an occasion to see the photographs Ext.PW11/A to Ext.PW11/P, which ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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makes it clear that bus had gone to extreme right side of the road after the accident, as is evident from the skid marks in the photographs.
.
Further perusal of photographs also suggests that bus bearing No. HP-
01-1643, after the accident, had covered long distance and went beyond bus bearing No. DL-IP-6566. Hence, this Court also has reason to infer that the accused was unable to stop the bus after striking which of fact also finds mention in the statement rendered by PW10, who reported that driver never applied breaks, meaning thereby, at that relevant time, bus was being driven in high speed without caring for the rt consequence, which could follow. Similarly, statement of Ext.PW-13/C clearly corroborates the testimony of PW1, who candidly stated that after having signal from the driver of another bus, the petitioner-
accused made an attempt to overtake though there was no sufficient space, as a result of which, accident occurred. It is undisputed that in the ill fated accident, two persons died. Hence, medical report adduced on record clearly corroborates the case of the prosecution that passengers sustained injuries due to rash and negligent driving of the accused-petitioner. Medical evidence further corroborates the prosecution case that injuries were also caused to PW1 and PW3 which was direct and proximate result of rash and negligent driving of the accused who was driving the bus HP-01-1643.
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21. At this stage, learned counsel for the petitioner-accused placed reliance upon judgment of this Court reported in Gurcharan .
Singh versus State of Himachal Pradesh 1990 (2) ACJ 598, the relevant paragraphs of which are reproduced here-in-below:-
"14. Adverting to the facts of this case, it is in evidence that the truck in question was loaded with fertilizer weighing 90 quintals. Obviously, it cannot be said that the speed of the vehicle was very fast. Secondly, it is a State Highway and not a National Highway. Therefore, the speed on this of account as well cannot be considered to be high.
15. Coming to the statements of witnesses on this aspect, it has been stated that the truck was moving in high speed but it has not been said as to what that speed actually was. To say that a vehicle was moving in a high speed is neither rt a proper and legal evidence on high speed nor in any way indicates thereby the rashness on the part of the driver. The prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved in a case under Section 304-A of the Indian Penal Code. Further, there are no skid marks which eliminate the evidence of high speed of the vehicle. In addition to this, it has been stated by the witnesses that the vehicle stopped at a distance of 50 feet from the place of accident. This appears to be exaggerated. However, it is not a long distance looking to the two points; viz, the first impact of the accident and the last tyres of the vehicle and the total length of the body of the truck in question. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of curve which frightened the child, cannot be considered to be without substance. This can otherwise be reasonably inferred that the petitioner would have blown the horn on seeing the child on the road as it is in evidence that the child had come on the pucca portion of the road while there is no evidence as to whether the witnesses, more particularly, Ghanshyam, PW7, Chander Kanta, PW8, mother, and a few other witnesses were there at that particular time. Rather the depositions of these witnesses indicate that they were coming from some village lane which was joining the main road in question. Children of this age, usually crafty by temperament, move faster than the parents and are in advance of them while ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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walking. This appears to have happened in the present case. Minute examination of the circumstances of this case and the evidence brought on the record, discloses that the deceased had reached the pucca portion of the road much before the arrival of his parents and the witnesses.
.
That is why in their deposition they have said that the child had been run over by the truck. On the other hand, the petitioner has stated that horn by him and started crossing the road which could not be seen by him and the result was the accident and the death of the child. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrian, however slow he may be driving the vehicle. In such a situation he cannot be held negligent; rather it appears that the parents of the child of were negligent in not taking proper care of the child and allowed him to come alone to the road while they were somewhere behind and they could have rushed to pull back the child before the approaching vehicle came in rt contact with him as it is in their depositions that the truck driver was at a distance coming at a high speed and in case the child wanted to cross the road, it could do so within the time it reached at the place of the accident. How the accident has actually taken place, has not been clearly and comprehensively stated by any of the witnesses. They appear to have been prejudiced by the act of the driver. Their versions are, therefore, coloured by the ultimate act of the petitioner and the fact that the child had been finished."
22. True, it is that the Hon'ble High Court while passing aforesaid judgment has observed that "prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved under Section 304-A of the Indian Penal Code".
Definitely, there cannot be any quarrel with regard to the aforesaid observations made by the Court but now question arises as to what can be the method/mode for measuring the exact speed of the offending vehicle at the time of accident. Undisputedly, in the present case, offending vehicle after striking with rock stopped at some distance and ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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automatically speedometer springs back to "Zero" and as such, no help at all can be taken from speedometer to ascertain the exact speed of .
the vehicle at the relevant time. To my mind, the eye witnesses of the accident can be the best persons to depose whether offending vehicle was in high speed or not. Apart from above, aspect of high speed can be gauzed from the side/direction of the offending vehicle being of driven on the wrong side and certainly an inference of its being driven rashly and negligently on high speed can be drawn by perusing spot map, photographs and mechanical reports which may point towards rt the force/impact, as supporting evidence. But obviously, in the absence of some specific mode to gauze the speed, only eye witnesses to the accident can be the best persons to depose the high speed/actual speed of the vehicle.
23. Learned counsel for the petitioner-accused also prayed that the accused may be given the benefit of probation under Section 4(b) of the Probation of Offenders Act, 1958 keeping in view his age and his being first offender. He also stated that mitigating circumstance in this case is that more than 20 years have passed after occurrence of the accident dated 17.6.1996, and moreover, the accused was convicted by the learned trial Court vide judgment dated 28.9.2006, and he is suffering continuous mental agony during the pendency of the appeal in the court of learned Sessions Judge, Mandi, Himachal ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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Pradesh, as well as in High Court of Himachal Pradesh. In support of the aforesaid arguments, Mr. Lakshay Thakur, also invited the attention of .
this Court to the judgment passed by this Hon'ble Court in Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:
9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this of revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts rt below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.
24. This Court cannot lose sight of the stern observations made by the Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182 while dealing with the accident case, the Hon'ble Apex Court has taken serious view of reduction of sentences by the courts below. Their lordships in the aforesaid judgment in paras No. 1, 14, 24 and 25 have held as under;
"1. Long back, an eminent thinker and author, Sophocles, had to say:::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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"Law can never be enforced unless fear supports them."
Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every right thinking citizen to show veneration to law so that an .
orderly, civilized and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If any one defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms of a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, rt the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N. Cardizo "Justice, though due to the accused, is due to the accuser too". And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices.
14. In this context, we may refer with profit to the decision in Balwinder Singh (supra) wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 days. The court referred to the decision in Dalbir Singh v. State of Haryana and reproduced two paragraphs which we feel extremely necessary for reproduction:- (Balwinder Singh case, SCC pp. 186-87, para12) "12...1. When automobiles have become death traps any leniency shown to drivers who are found guilty of ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling .
them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.
13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A of IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of rt automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours.
He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles." (Dalbir Singh case, SCC pp. 84--85 & 87, paras 1 &13)"
24. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice.::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one .
year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months
25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey".
Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are of not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining rt circumstances, we are bound to observe that the law- makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish."
25. After giving my thoughtful consideration to the law cited by Mr. Lakshay Thakur, learned counsel representing the petitioner-
accused in the present case as well as observations made by Hon'ble Apex Court in Saurabh Bakshi case (supra), I am of the view that present case is not fit case for granting the benefit of Section 4 of probation of Offenders Act, 1958. The Hon'ble Apex Court in the judgment cited above has deprecated the practice of courts in settling the matter by awarding compensation or releasing the accused by giving the benefit of Probation of Offenders Act, 1958. In the facts and circumstances of the present case, where there is overwhelming evidence to suggest that vehicle was driven by the accused in most ::: Downloaded on - 15/04/2017 21:13:19 :::HCHP
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rash and negligent manner, no leniency can be shown to the accused.
.
26. However, in the facts and circumstances of the case, it appears to the Court that sentence imposed by the court below is on little higher side and same deserves to be modified accordingly.
Accordingly, sentences imposed by the courts below for the offences of committed under Sections 279, 337, 338 and 304-A of Indian Penal Code are modified to three months only.
27. In view of the above, judgments passed by both the courts rt below are upheld. However, conviction/sentence imposed upon the accused is modified to the aforesaid extent only. Order dated 5.2.20010, passed by this Court, whereby sentence imposed by the court below was suspended, is hereby vacated and the petitioner-
accused is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by this Court vide this Judgment. Petition stands disposed of along with pending applications, if any.
9th September, 2016 (Sandeep Sharma),
manjit Judge.
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