Himachal Pradesh High Court
Gopal Krishan vs State Of Himachal Pradesh on 28 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. : 13 of 2011.
Reserved on: 15.12.2016.
Decided on: 28.12.2016.
.
Gopal Krishan ....Petitioner.
Versus
State of Himachal Pradesh ... Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
of Whether approved for reporting?1 No For the petitioner : Mr. Lakshay Thakur, Advocate.
For the respondent rt : Mr. Vikram Thakur Deputy Advocate General.
Ajay Mohan Goel, Judge By way this revision petition, accused/petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge, Mandi, in Criminal Appeal No. 27 of 2008, dated 12.01.2011, vide which learned Appellate Court, while dismissing the appeal so filed by the present petitioner, upheld the judgment of conviction and sentence imposed upon the present petitioner by the Court of learned Judicial Magistrate 1st Class, Court No. 2, Sunder Nagar, District Mandi, in Police Challan No. 388-I/06/374-II/06, dated 16.05.2008, whereby learned trial Court had convicted the present petitioner for commission of offences punishable 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 2under Sections 279, 337 and 338 of Indian Penal Code (hereinafter referred to as 'IPC' ) and Section 187 of the Motor Vehicle Act (hereinafter referred to as 'M.V. Act') and .
sentenced him as under.
Sr.No. Section Sentence awarded
1. 279 of IPC Simple imprisonment for four months
and fine of ` 1000/-.
2. 337 of IPC Simple imprisonment for four months
of
and fine of ` 500/-.
3. 338 of IPC Simple imprisonment for six months
and fine of ` 1000/-.
4.
rt
187 of M.V. Act Simple imprisonment for three months and fine of ` 500/-.
In case of default of payment of fine, accused/petitioner was ordered to undergo simple imprisonment for one month each under Sections 279, 337 and 338 of IPC and simple imprisonment of 15 days under Section 187 of M.V. Act.
2. Case of the prosecution was that on 16.01.2009, complainant Uttam Chand made a statement under Section 154 of Code of Criminal Procedure (in short 'Cr.P.C.') to the effect that he was a retired employee from Education Department and during the night time, at about 3:30 a.m. his nephew Sunil Kumar telephonically told him that his (Sunil Kumar's) parents, who were going to attend a marriage on their Scooter bearing registration No. "A/F", had met with an ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 3 accident with a Maruti Car bearing registration No. HP-01-M-
0103. The offending vehicle was on its way from Sunder Nagar towards Mandi side and Mobile No. 94180-87163 and .
Land Line No. 271563 were written on the glass of said Maruti Car. The accident took place at around 8:15 p.m. and after hitting the Scooter, Car driver escaped from the scene of occurrence. As per prosecution, on account of said accident, of Nikka Ram and his wife Raj Kumari suffered injuries, who were thereafter taken to hospital for treatment. As per rt complainant, after he received the telephone call, he reached Suket Hospital, Sunder Nagar and talked with his brother Nikka Ram and his wife, who told him that the offending vehicle, which was coming from Sunder Nagar to Mandi side hit their Scooter near J.K. Brick Kiln, Naulakha, as a result of which they sustained injuries. Further as per prosecution, on the basis of said statement of complainant, FIR Ext. PW10/A was lodged. Medical examination of the victims was conducted at Suket hospital by Dr. Ravi Kumar who opined that injuries No. 1, 2 and 5 were simple in nature and injuries No. 3 and 4 were grievous in nature on the person of Nikka Ram and all the injuries on the person of Raj Kumari were found simple in nature. During the course of investigation, Investigating Officer prepared spot map and ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 4 also recorded the statements of witnesses under 161 of Cr.P.C.
3. After completion of investigation, challan was filed .
in the Court and as a prima facie case was found against the accused, notice of accusation was put to him for commission of offences punishable under Sections 279, 337 and 338 of IPC and Section 187 of M.V. Act, to which he pleaded not of guilty and claimed trial.
4. Learned trial Court on the basis of evidence led by rt the prosecution on record returned the finding that there was no reason to disbelieve the prosecution story and evidence which was adduced before it appeared to be fully trustworthy.
It was held by the learned trial Court that the case of the prosecution was proved on material points by the prosecution witnesses especially injured persons who had sufficiently established that the accused after hitting the Scooter escaped from the scene of occurrence and did not take any steps to secure medical attention for the injured persons by taking them to nearest hospital and thus tried to escape himself from his legal as well as moral duty to take steps to secure medical attention to the injured persons. It was further held by the learned trial Court thus it stood proved on record that accused had hit the Scooter of the injured on the wrong side ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 5 of the road and ocular testimony produced on record by the prosecution had supported its case which stood corroborated by spot map also. Learned trial Court also held that dent in .
the Car, as was shown in photographs Ext. P-1 to Ext. P-7, and spot map demonstrated that the Car was being driven on its wrong side and the said dents were possible if a car was hit by a vehicle like a Scooter going from opposite side in a of high speed. Learned trial Court also held that presence of the car at the scene of occurrence was corroborated from the rt testimony of PW4, who stated on oath that number plate of the Car Ext. P-1, wiper of the Car Ext. P-2 and broken pieces of glass of Car Ext. P-3 were taken into possession by the police from the spot in his presence and he had signed memo Ext. PW4/A. Learned trial Court also held that accused could not give any cogent explanation as to how wiper, number plate and broken pieces of glass of the car were found on the scene of accident. Thus, on the basis of findings so returned, learned trial Court convicted the accused for commission of offences punishable under Sections 279, 337, 338 of IPC and Section 187 of M.V. Act.
5. In appeal, learned Appellate Court while upholding the judgment of conviction returned against the accused by the learned trial Court held that the conclusions which were ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 6 arrived at by the learned trial Court about the accused driving the offending vehicle in rash and negligent manner could not be faulted with and factum of Nikka Ram and Raj Kumari .
having suffered injuries in the accident was duly proved by PW7 Dr. Ravi Kumar. Learned Appellate Court held that PW7 had specifically stated that he had noticed grievous injuries on the person of Nikka Ram and simple injuries on the of person of Raj Kumari and those injuries could have been caused in a Motor Vehicle accident. Learned Appellate Court rt held that Section 134 of Motor Vehicle Act provides that when a person is injured as a result of accident, then the driver of the offending vehicle has to take reasonable steps to secure medical aid to injured person by taking the injured person to the nearest medical practitioner. It further held that in the present case, accused had not taken the injured to the nearest hospital and thus violated the said provision. Learned Appellate Court also took note of the mechanical examination of the Scooter and the Car which was conducted by Durga Dass who found that gear lever, front mud guard, tin and hand break of the Scooter were damaged due to accident and that the car was damaged due to the accident but there was no defect in the car which could have led to the accident. It was also held by the learned Appellate Court that cross ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 7 examination of prosecution witnesses did not suggest that they were making false statements and as per the site plan, Scooter was being driven on the extreme side of the road and .
as the space towards left side of the Scooter going from Sunder Nagar to Mandi was 25 feet, this reflected that there was sufficient space available towards the left side of the driver of the car. It also held that photographs Ext. P-4 and of Ext. P-5 clearly demonstrated that Scooter was lying towards the side of the road near the edge and the version of the rt prosecution that vehicle was being driven with sufficient space towards left side stood proved by the photographs as well as the site plan. It also held that driver of the motor car had violated Rule 2 of Rules of the Road Regulation, 1989, as per which, driver was required to drive the vehicle as close to the left side as may be expedient.
6. Learned Appellate Court also rejected the plea of the petitioner for giving him benefit of Probation of Offenders Act on the ground that as per law laid down by the Hon'ble Supreme Court, no leniency was to be shown to a person who was convicted for offence punishable under Section 279 of IPC. It was also held by the learned Appellate Court that sentences imposed upon the petitioner could also not be termed as excessive considering the fact that offences ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 8 involving motor vehicles were to be dealt with severity. On these bases, learned Appellate Court dismissed the appeal so filed by the present petitioner.
.
7. Mr. Lakshay Thakur, learned counsel for the petitioner has argued that the judgments of conviction passed against the present petitioner by both the learned Courts below were not sustainable in the eyes of law as the same of suffered from perversity. According to Mr. Thakur both the learned Courts below erred in not appreciating that there was rt neither any identification of the accused to the effect that in fact it was he who was driving the offending vehicle when the alleged accident took place and even if it was assumed that offending vehicle was being driven by the petitioner, then also the judgment of conviction so passed against him by both the learned Courts below suffered with infirmity as both the learned Courts below erred in not appreciating that accident had occurred on account of negligence of the Scooterist. On these bases, it was argued by Mr. Thakur that the judgments of conviction so passed by both the learned Courts below against the accused were not sustainable. As per Mr. Thakur, findings returned by the learned Courts below were not borne out from the records of the case and both the learned Courts below erred in not appreciating that the prosecution was not ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 9 able to prove its case against the accused beyond reasonable doubt. No other point was urged.
8. On the other hand, learned Deputy Advocate .
General argued that there was neither any perversity with the judgments so passed by both the learned Courts below nor it could be said that the findings returned by learned Courts below were not borne out from the records of the case.
of According to learned Deputy Advocate General, it stood proved beyond reasonable doubt that it was the accused who rt was driving the offending vehicle and that too on the wrong side of the road when on account of his rash and negligent driving, the Scooter being driven by victim Nikka Ram was hit by him resulting in injuries to both the riders. According to Mr. Vikram Thakur, the case of the prosecution stood proved and corroborated by the evidence led by the prosecution both ocular as well as documentary and taking into consideration that both the learned Courts below had returned the finding of guilt against the accused, the same did not warrant any interference by this Court and that too in exercise of its revisional jurisdiction.
9. I have heard the learned counsel for the petitioner as well as learned Deputy Advocate General and also gone ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 10 through the records of the case as well as the judgments passed by both the Courts below.
10. The contention of the learned counsel for the .
petitioner that the prosecution could not establish that it was the accused who was driving the offending vehicle stands belied from the testimony the victims who entered the witness box as PW1 and PW3. A perusal of the statement of PW1 Raj of Kumari, one of the two victims, demonstrates that she categorically stated in her deposition that on the fateful day, rt the Scooter on which she was traveling with her husband was hit by car bearing registration No. HP-01-M-0103, which was being driven rashly and in a negligent manner. This witness also deposed that driver of the vehicle was identified by her husband and the name of the driver was Gopal Krishan. This witness also deposed that after the incident, the accused came out of the car, stayed at the spot for some time and thereafter ran away with the car towards Mandi side. She categorically stated that accident took place on account of rash and negligent driving of the accused. Incidentally, a perusal of the cross examination of this witness reveals that suggestions which were given to her by the defence were that the accident took place as the Scooter ran over a heap of sand and 'bajri' which suggestion was denied by her and it was ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 11 also suggested to her that both the victims were in fact lying at the spot and accused helped them.
11. Similarly, PW3 Nikka Ram also categorically .
stated that the Scooter which was driven by him was hit by a Maruti Car which was being driven in a rash and negligent manner and that too on the wrong side of the road which resulted in injuries to him and his wife. He also deposed that of offending vehicle was being driven by the accused. He further deposed that after the accident took place, accused came out rt of the car and started searching for something. He further deposed that he requested the accused to take them to hospital but rather than taking them to Hospital, accused ran away from the spot with his car.
12. Though both the victims were subjected to cross examination by the defence, however, nothing could be elucidated from their testimonies to impeach their credibility.
Thus, the contention of the learned counsel for the petitioner that the prosecution was not able to establish, on the basis of material on record that it was the accused, who was driving the vehicle at the relevant time stands belied from the above discussion. In fact, the factum of the presence of accused at the spot is impliedly admitted from the suggestions given by the defence to PW1 wherein it was suggested to PW1 that the ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 12 victims were in fact lying at the spot and accused had tried to help them.
13. Besides this, the case of the prosecution has also .
been proved by the testimony of complainant Uttam Chand, who entered the witness box as PW2. PW7 Dr. Ravi Kumar has proved on record that few of the injuries which were suffered by victim Nikka Ram in the accident were grievous in of nature. PW10 ASI Tulsi Ram, the Investigating Officer also corroborated the case of the prosecution and his testimony rt duly establishes that the accident had taken place on account of rash and negligent driving by the accused. Collective reading of the material adduced on record both ocular and documentary by the prosecution establishes that accident had not occurred on account of Scooter having skidded on account of sand and 'bajri' lying on the corner of the road. In fact, this contention of learned counsel for the petitioner is falsified both from the site plan Ext. PW10/C as well as photographs of the spot Ext. P-8 to Ext. P-14, perusal of which makes it evident that there was neither any sand nor 'bajri' at the place where the accident actually took place.
14. Besides this, the mechanical reports of the vehicles involved in the accident including that of the car demonstrate that the car which was being driven by the ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 13 accused had suffered damage on account of said accident and the mechanic who examined the said car found that there was no mechanical defect in the car.
.
15. Therefore, in view of the above discussion, it cannot be said that the findings returned by both the learned Courts below against the accused are perverse. Similarly, it cannot be said that the findings so returned by both the of learned Courts below against the accused are not based on the records of the case. In my considered view, it is evident rt from a perusal of the judgments passed by both the learned Courts below that learned Courts below took into consideration all aspects of the matter including the evidence which was placed on record by the prosecution and after a careful examination of the evidence, the findings of conviction have been returned against the accused.
16. 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 in the absence of 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 that the object of the revisional jurisdiction was to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 14 miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted in .
undeserved hardship to individuals.
17. It has been reiterated by the Hon'ble Supreme Court in Shlok Bhardwaj Vs. Runika Bhardwaj and others (2015) 2 Supreme Court Cases 721 that the scope of of revisional jurisdiction of the High Court does not extend to re-
appreciation of evidence.
18. rt 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 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 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 ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 15 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 of decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly rtunreasonable 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 capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
19. In view of the above discussion, I am of the considered view that there is neither any perversity nor any infirmity with the judgments passed by the learned Courts below. Therefore, there is no merit in the revision petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, also stands disposed of.
(Ajay Mohan Goel) Judge 28th December, 2016.
(narender) ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP 16 .
of rt ::: Downloaded on - 15/04/2017 21:49:45 :::HCHP