Himachal Pradesh High Court
______________________________________________________________________ vs State Of Himachal Pradesh on 19 October, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.: 212 of 2010
Reserved on: 29.09.2016
.
Date of Decision: 19.10.2016
______________________________________________________________________
Shri Rajesh Dogra .....Petitioner.
Vs.
State of Himachal Pradesh .....Respondent.
Coram:
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: rt Mr. Y.P. Sood, Advocate.
For the respondent: Mr. Vikram Thakur and Mr. Puneet
Rajta, Deputy Advocate Generals.
Ajay Mohan Goel, Judge:
Petitioner herein stands convicted for commission of offences punishable under Sections 279, 337 & 304-A of the Indian Penal Code by the Court of learned Judicial Magistrate 1st Class, Theog in Case No. 161- 1 of 2007 decided on 21.04.2008, which conviction of the petitioner in appeal stands upheld by learned appellate Court in Criminal Appeal No. 23-S/10 of 2008 decided on 24.09.2010. Learned trial Court while convicting the accused for commission of offences punishable under Sections 279,337 and 304-A of the Indian Penal Code sentenced the petitioner to undergo simple imprisonment for three months under Section 279 of the Indian Penal Code and to pay a fine of `500/-. It Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 2further sentenced the petitioner to undergo simple imprisonment for three months under Section 337 of the Indian Penal Code and to pay a fine of `500/-. Besides this, learned trial Court sentenced the petitioner .
to undergo rigorous imprisonment for one year under Section 304-A of the Indian Penal Code and to pay a fine in the sum of `1000/-. All the sentences were ordered to run concurrently. Feeling aggrieved by the said conviction of his under Sections 279, 337 and 304 of the Indian Penal Code, the petitioner has challenged the above mentioned judgments of passed by both the learned Courts below by way of this revision petition.
2. The case of the prosecution was that on 12.11.2006, rt petitioner/accused made a statement in Civil Hospital, Theog before the police that he was owner of Maruti Car bearing registration No. HP-08- 0425 and on 12.11.2006, he alongwith Subhash and Sardari Jinta were going to Maraog from Shimla in the abovementioned vehicle, which was being driven by his driver Subhash (wrongly mentioned as Satish Kumar) and when the said vehicle reached near Tarapur, the vehicle on account of its being driven in a high speed fell down in a Nalah about 40-50 feet down side the road. Thus, as per the statement of Rajesh Dogra, accident in question took place because of the rash and negligent driving of his driver who was asked by him to drive slowly. After the accident, the injured were brought to Civil Hospital, Theog by the local people. On the basis of said statement of Rajesh Dogra, FIR Ex. PW10/B was recorded.
Rajesh Dogra and Subhash were medically examined in Civil Hospital, Theog, from where Subhash was referred to IGMC, Shimla, where he died ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 3 because of injuries sustained in the accident. Investigation revealed that in fact at the time of accident, the car in question was not being driven by Subhash, but the same was being driven by accused Rajesh Dogra .
himself and he had made a false complaint by way of his statement which was recorded under Section 154 of the Code of Criminal Procedure to the effect that the accident took place on account of rash and negligent driving of Subhash. After completion of investigation, challan was filed in the Court against the accused for commission of offences punishable of under Sections 279,337 and 304-A of the Indian Penal Code. Notice of accusation was put to the accused, to which he pleaded not guilty and rt claimed trial. On the basis of evidence produced on record both ocular as well as documentary by the prosecution, learned trial Court held that it had come in the statement of accused recorded under Section 313 of the Code of Criminal Procedure in reply to Question No. 2 that he himself was driving the vehicle, though the same was not being driven by him in a rash and negligent manner. Learned trial Court took note of the fact that no explanation was given neither any defence witness was examined by the accused to disprove the fact that he had not made a wrong statement to the police under Section 154 of the Code of Criminal Procedure. Learned trial Court also took note of the fact that as per the accused, the accident had taken place as the stearing rod of the vehicle developed defect, which resulted in the occurrence of the accident, whereas mechanical report Ex. PW3/A fully demonstrated that the stearing system of the car which was duly checked was found to be ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 4 perfectly alright and the Mechanic who had examined the Car and had entered the witness box as PW-3 had categorically stated on oath that there was no mechanical defect in the vehicle. Learned trial Court also .
took note of the fact that the only eye witness, i.e. PW-6 Sardar Singh who was also travelling in the fatal Car had categorically stated that he was sitting on the back seat and Subhash and accused were sitting on the front seat. He further admitted that it was the accused, who was driving the vehicle at the relevant time. It was held by the learned trial of Court that the contention of the accused that it was not he but Subhash who was driving the vehicle stood falsified by the testimony of PW-6 rt Sardar Singh and further the conduct of the accused casts doubt as firstly he falsely stated that he was not driving the vehicle and thereafter, he stated that the accident took place on account of a defect in the stearing system of the vehicle, but both these points stood disproved by the prosecution beyond reasonable doubt. Learned trial Court further went on to hold that as per spot map Ex. PW5/A, pucca structure of the road at the spot of accident was 12 feet and kacha structure was 5 feet.
Thus, the road was quite wide and as per the report furnished by the Mechanic, the vehicle was not having any mechanical fault. On these basis, it was held by the learned trial Court that non-application of skillful mind well in time while driving amounts to gross negligence and that the prosecution had duly proved that accused was driving the vehicle in a rash and negligent manner. On these basis, learned trial Court held ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 5 the accused guilty for commission of offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code.
3. In appeal, learned appellate Court while upholding the .
findings so returned by the learned trial Court held that it was an admitted fact that at the time of accident in question, it was the accused himself who was driving the vehicle, which stood proved by PW-6 as well as the accused, who had admitted in his statement recorded under Section 313 of the Code of Criminal Procedure that it was he who was of driving the vehicle. Learned appellate Court further held that it was again an admitted fact that FIR in the case was registered at the instance of rt accused himself, in which it was alleged by him that the accident took place on account of rash and negligent driving of his driver deceased Subhash. Learned appellate Court held that in fact the accused himself had mentioned in the FIR that the Car in question was being driven rashly and negligently and further in his statement recorded under Section 313 of the Code of Criminal Procedure, accused had admitted that it was he who was driving the vehicle in question. On these basis, it was held by the learned appellate Court that when it was the accused who was driving the vehicle, it was for him to have had explained as to how the accident took place and how the vehicle went out of the road about 40-50 feet down side because such a fact was only in his knowledge, however, he had not explained how the accident took place, rather he tried to establish that the accident took place due to mechanical failure, but said version of the accused was proved to be ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 6 incorrect. Learned appellate Court further held that the conduct of the accused of lodging a false FIR against the deceased, position of the road at the spot and other facts proved the guilt of the accused and on these .
basis, it was held by the learned appellate Court that there was no reason to interfere with the judgment passed by learned trial Court.
4. Mr. Y.P. Sood, learned counsel appearing for the petitioner has vehemently argued that the judgments passed by both the Courts below were perverse and not sustainable in law because while convicting of the accused, both the Courts below erred in not appreciating that de hors the fact as to what was stated by the accused on the basis of which the rt FIR was lodged, the onus to prove that the accident took place on account of rash and negligent driving of the accused was on the prosecution and the prosecution had miserably failed to discharge and prove the said onus beyond reasonable doubt. According to Mr. Sood, the accused had been convicted by the learned Courts below simply on this ground that he had lodged a false FIR. As per Mr. Sood, there was not even an iota of evidence on record from which it could be inferred that the accident in fact had taken place because of rash and negligent driving of the accused.
Mr. Sood argued that in the absence of any material on record produced by the prosecution to establish and substantiate that the accident had taken place on account of rash and negligent driving of the accused, the findings returned in this regard by the learned trial Court and upheld by the learned appellate Court were perverse and were liable to be struck down. On these basis, it was urged by Mr. Sood that the finding of ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 7 conviction returned by both the learned Courts below against the accused be set aside.
5. On the other hand, Mr. Vikram Thakur, learned Deputy .
Advocate General strenuously argued that there was no merit in the revision petition as the finding of conviction returned by learned trial Court and upheld by learned appellate Court was duly substantiated from the material which was produced on record by the prosecution. It was argued by Mr. Thakur that besides the accused having tried to of mislead the investigation by lodging a false FIR, all other attending circumstances proved beyond any reasonable doubt that the accident had rt in fact taken place as a result of rash and negligent driving of the accused. Mr. Thakur argued that the contention of the accused that the vehicle was being driven by deceased Subhash stood demolished by the prosecution. He further argued that it stood proved on record by the prosecution and rather in fact it stood admitted even by the accused himself that it was he who was driving the vehicle when the accident took place. Mr. Thakur further urged that the explanation given by the accused to the effect that the accident took place due to a mechanical fault also stood dispelled by the prosecution as it stood proved on record that there was no mechanical defect in the vehicle as was alleged by the accused. On these basis, it was urged by Mr. Thakur that in the absence of there being any mechanical defect in the vehicle and it being stood duly established on record from the spot map that at the spot where the accident took place, the road was wide and there was no other extraneous ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 8 circumstance or reason which resulted in the unfortunate incident, the accident took place because of rash and negligent driving of the accused.
It was further submitted by Mr. Thakur that keeping in view the fact that .
both the learned Courts below had held that the accident had taken place due to rash and negligent driving of the accused, the said findings should not be interfered by this Court in exercise of its revisional jurisdiction because the learned counsel for the petitioner failed to point out during the course of arguments that the judgments passed by both the Courts of below were either perverse or the findings returned by them were not borne out from the record. On these basis, it was urged by Mr. Thakur rt that there was no merit in the revision petition and the same be dismissed.
6. I have heard the learned counsel for the parties and also gone through the records as well as the judgments passed by both the learned Courts below.
7. It is a matter of record that the FIR in the present case was lodged at the behest of the accused and it was initially stated by the accused that the accident in fact had taken place due to rash and negligent driving. However, as per the accused, this rash and negligent driving which resulted in the accident was not done by him but was done by his driver who died in the accident. This contention of the accused that the Car met with an accident on account of rash and negligent driving of deceased Subhash stands falsified as it has been duly proved on record by the prosecution that the vehicle in issue was not being ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 9 driven by deceased Subhash but it was being driven by the accused when it met with an accident. Therefore, the factum of the accused having lodged FIR by giving false information stands duly proved on record. The .
factum of the vehicle being driven by the accused at the time of fatal accident further stands corroborated by the testimony of PW-6 Sh. Sardar Singh, who was a co-passenger in the car as well as by the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, wherein in answer to Question No. 2, the accused has stated of that it was correct that he was driving the vehicle at the time of accident.
8. The mechanical report of the vehicle is on record as Ex.
rt PW3/A. This report has been proved by PW-3 HC Gian Chand, who has deposed in the Court that he was serving in the Police Department since 1993 as a Mechanic and on 14.11.2006, he had mechanically examined Maruti Car bearing registration No. HP-08-0425 and as per his report, there was no mechanical defect in the Car. It is clearly mentioned in Ex.
PW3/A that the stearing system of the Car was checked which was found to be functional. It is further clearly mentioned in Ex. PW3/A that in the opinion of the Mechanic, the accident has not taken place on account of any mechanical defect in the vehicle. Site plan Ex. PW5/A demonstrates that at the spot where the accident took place, the width of the metalled road was about 12 feet and width of unmetalled road was about 5 feet. In other words, the accident has not taken place at a spot where the width of the road was either narrow or very narrow. It is nobody's case that accident either took place while taking pass etc. from any other vehicle or ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 10 there was some external factor which resulted in the fatal accident. The only explanation given by the accused, i.e. that the accident took place because of mechanical defect in the stearing rod of the Car has been .
disproved by the prosecution. Therefore, in these circumstances, it cannot be said that the findings arrived at by both the learned Courts below to the effect that the accident has taken place due to rash and negligent driving of the accused are either perverse or not borne out from the records of the case. Further, there is no merit in the contention of the of learned counsel for the petitioner that the petitioner has been convicted solely on the basis of his statement, on the basis of which FIR was rt lodged. In my considered view, the prosecution produced on record sufficient material to prove that the accident in fact had taken place due to rash and negligent driving of the accused and both the learned Courts below took into consideration the entire evidence placed on record by the prosecution both ocular as well as documentary and the finding of conviction returned by learned trial Court and upheld by the learned appellate Court is not solely based on being influenced by the information provided by the accused, on the basis of which, the FIR was lodged. Even if the said contents of the FIR are ignored, in my considered view, there was sufficient material on record produced by the prosecution which proved beyond reasonable doubt that the accident in fact took place because of rash and negligent driving of the accused.
9. It has been held by the Hon'ble Supreme Court in Oriental Insurance Company Limited Vs. Premlata Shukla and others (2007) ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 11 13 Supreme Court Cases 476 that the factum of an accident could also be proved from the first information report and once a part of the contents of the document is admitted in evidence, the party bringing the .
same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved.
10. In this view of the matter, in my considered view, it cannot be said that the finding of conviction returned by learned trial Court against the accused is either perverse or not borne out from the records of of the case or that the learned appellate Court erred in upholding the judgment of conviction so passed by learned trial Court.
11. rt It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot absence or error on a point of law, re-appreciate evidence and reverse a finding of law. It has been further held by the Hon'ble Supreme Court in that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals.
12. It has been reiterated by the Hon'ble Supreme Court in Shlok Bhardwaj Vs. Runika Bhardwaj and others (2015) 2 Supreme Court ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 12 Cases 721 that the scope of revisional jurisdiction of the High Court does not extend to reappreciation of evidence.
13. It has been further reiterated by the Hon'ble Supreme Court .
in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and others (2015) 3 Supreme Court Cases 123:
"14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has of passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the rt court is wholly unreasonable or there is non-
consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP 13 capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
14. Therefore, in view of what has been discussed above, I do not .
find any merit in the present revision petition nor it can be said that the judgment of conviction passed by learned trial Court and upheld by learned appellate Court is not sustainable either on facts or law.
15. As already held above, there is no perversity in the judgments passed by the learned Courts below. These judgments have been passed of by appreciating all the material on record and the judgments are neither cryptic nor it can be said that the conclusions arrived at are not borne rt out from the material placed on record by the prosecution. Thus, the revision sans merit and the same is dismissed.
(Ajay Mohan Goel) Judge October 19, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:23:44 :::HCHP