Office Sidhpur vs State Of H.P. (2009) 7 Supreme on 30 May, 2022

[Cites 14, Cited by 0]

Himachal Pradesh High Court

Office Sidhpur vs State Of H.P. (2009) 7 Supreme on 30 May, 2022

By way of instant application filed under Section 482 Cr.P.C, prayer has been made on behalf of the applicant/ petitioner ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 2 to convert the instant petition as a Criminal Revision petition under Section 397/401 of Cr.P.C. No reply is intended to be filed on behalf .

of the non-applicant/ respondent.

2. Averments contained in the application reveals that by way petition filed under Section 482 Cr.P.C, prayer has been made on behalf of the petitioner for quashing of FIR as well as consequent proceedings on the basis of the compromise arrived interse petitioner and respondent No.2. Since petitioner has already undergone sentence till rising of the Court and has also deposited the fine amount, prayer made in the instant petition for quashing of FIR on the basis of compromise cannot be accepted and as such, by way of instant application, prayer has been made to convert these proceedings initiated under Section 482 Cr.P.C to that of Criminal Revision Petition under Section 397/401 of Cr.P.C

3. For the reasons stated in the application, the same is allowed and instant petition filed under Section 482 Cr.PC., is ordered to be treated as Criminal Revision Petition under Section 397/401 of Cr.P.C. Registry is directed to register the same as Criminal Revision Petition. The application stands disposed of.

Criminal Revision No.285 of 2022

4. By way of instant Criminal Revision petition filed under Section 397/401 of the Code of Criminal Procedure, challenge has ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 3 been laid to judgment dated 12.01.2022,passed by Additional Sessions Judge, Sarkaghat, District Mandi, H.P., in Criminal Appeal .

No.23/21/2019, reversing/modifying the judgment of conviction and order of sentence dated 23.01.2019/16.04/2019, passed by Additional Chief Judicial Magistrate, Court No.1 Sarkaghat, District Mandi, H.P., in police Challan No.235-II/2010, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Sections 279, 337 and 338 of IPC, convicted and sentenced him, as per the description given hereinbelow:-

         Sr. No.   Offence       Sentence    Fine Amount
                                             (`)
         1.        27 of IPC     RI for two `500
                                 months
         2.        337 of IPC    RI for two `500/-


                                 months
         3.        338 of IPC    RI for four `1000/-
                                 months

5. Precisely, the facts of the case as emerge from the record are that on 24.3.2010, petitioner-accused was driving vehicle bearing registration No.HP-28-2901 on public way, however at about 1.30 PM petitioner-accused lost control of the vehicle and as such, vehicle was overturned on the side of the road at place Longini, as a consequence of which, occupants of the vehicle namely, Shanta Devi, Sarla Devi, Kanta Devi, Nittu Devi, Reena Devi, Shivi Devi, Promila Devi, Varsha Devi, Anupama Devi, Sheela Devi, Ajay Kumar, Anju Devi, Rajani Devi, Lata Devi, Ashwani Kumari, Maya Devi, Kamali Devi, Kuldeep ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 4 Singh, Champa Devi, Atti Devi, Kamla and Lucky received simple injuries, whereas persons namely Vimla Devi, Mansa Devi, Hima Devi, .

Judhya Devi and Geeta Devi received grievous injuries. FIR No.83/2010, dated 24.03.2010 came to be registered on the basis of the statement made by complainant Shanta Devi under Section 154 Cr.P.C, wherein she alleged that at the time of the accident vehicle was being driven rashly and negligently by the petitioner-accused.

After completion of the investigation, police presented challan in the competent court of law.

6. Learned trial Court being satisfied that a prima-facie case exists against the accused, put him notice of accusation for the offence punishable under Sections 279, 337 and 338 of IPC and Section 187 of the Motor Vehicles Act, to which he pleaded not guilty and claimed trial.

7. Prosecution with a view to prove its case examined as many as 26 witnesses, whereas accused in his statement recorded under Section 313 Cr.P.C. claimed himself to be innocent, however, he did not lead any evidence in his defence.

8. Learned trial Court on the basis of the evidence led on record by the prosecution held accused guilty of having committed the offence punishable under Sections 279,337 and 338 of IPC and accordingly convicted and sentenced him as per the description given hereinabove. However, petitioner-accused came to be acquitted under Section 187 of the Motor Vehicles Act.

::: Downloaded on - 02/06/2022 20:02:56 :::CIS 5

9. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by trial court, .

present petitioner-accused preferred an appeal in the Court of learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. Learned Additional Sessions Judge vide judgment dated 12.01.2022 partly allowed the appeal and modified/reduced the sentence till rising of the Court awarded by learned trial Court. Since petitioner-

accused was convicted to undergo simple imprisonment till rising of the court, he served the sentence then and there. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgments and order of sentence passed by learned Court below.

10. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned in the judgment impugned in the instant proceedings, this Court finds substantial force in the submission of learned counsel representing the petitioner-accused that since at no point of time it ever came to be proved on record that at the relevant time vehicle was being driven rashly and negligently, Court could not have proceeded to hold petitioner-accused guilty of having committed offence punishable under Sections 279, 337 and 338 of IPC merely on the basis of the statements made by some of the witnesses that vehicle was being driven in high speed by the petitioner-accused.

::: Downloaded on - 02/06/2022 20:02:56 :::CIS 6

11. In the case at hand though prosecution examined as many as 26 witnesses, but majority of them turned hostile. Otherwise .

also, save and except witnesses i.e. PW-3, PW-4, PW-5, PW-6, PW-25 and PW-26 all are eye witnesses of the occurrence. PW-1, Shanta Devi, PW-2. Sarla Devi, PW-7, Vimla Devi, PW-8, Kanta Devi, PW-12 Anupma Devi, PW-13, Ajay Kumar, PW-15, Rajani Devi, PW-16 Lata Devi, PW-18 Ashwani Kumar, PW-19 Champa Devi, PW-20 Geeta Devi, PW-21 Maya Devi, PW-22 Kamli Devi, PW-23 Anju Devi, PW-24 Hima Devi, and PW-27 Atti Devi turned hostile. Cross-examination conducted upon these witnesses, nowhere suggest that the public prosecutor was able to extract something contrary to what they stated in their examination-in-Chief. Otherwise also, none of these witnesses specifically supported the case of the prosecution that at the relevant time vehicle in question was being driven rashly and negligently by the petitioner. No doubt, these witnesses admitted that at the time of the accident vehicle was being driven by the petitioner and they were travelling in the vehicle, which had turned on its side at the place of occurrence. Apart from above, these witnesses also admitted that they suffered injuries in the accident but aforesaid admission made on behalf of these witnesses, named hereinabove, nowhere persuade this court to agree with learned Additional Advocate General that at the relevant time vehicle was being driven rashly and negligently by the petitioner-accused.

Moreover, all the aforesaid witnesses categorically stated that there ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 7 was no fault of the accused as the vehicle was being driven slowly.

PW-9, PW-10, PW-11 and PW-17 have supported the case of the .

prosecution.

12. PW-9, Promila Devi deposed that on the fateful day she was travelling in the accidental vehicle alongwith other villagers which were being driven by the accused. She deposed that vehicle turned on its side at place Longini and she suffered injuries and her medical was also conducted. She further deposed that all the passengers were requesting the accused to drive the vehicle slowly or to let them alight from the vehicle but the accused continued to drive the vehicle at high speed and negligently. In her cross-

examination, she categorically admitted that there are lot of curves near the place of occurrence. She also stated that the vehicle was being driven slowly and sound of breaking something had also come.

13. Similarly, PW-10, Mansa Devi and PW-11, Varsha Devi and PW-17, Judhya Devi also deposed that on the fateful day, they all were travelling in the vehicle being driven by the petitioner. They stated that when the vehicle reached at place Longini, it turned on its side. They also deposed that all the passengers repeatedly requested the petitioner to drive the vehicle slowly or let them alight from the vehicle but petitioner-accused continued to drive the vehicle at high speed and negligently, as a result of which, accident occurred. However, these witnesses in their cross-examination admitted that at the place of occurrence there are 3-4 shops. They ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 8 also admitted that before the place of occurrence there is lot of narrow curves. PW-11, in her cross-examination stated that .

ordinarily when the driver negotiates such curves, he drives the vehicle slowly and she did not hear any sound of breaking from the vehicle. She also admitted that there were lot of persons present in the shop at the place of occurrence. She also admitted that at the place of occurrence there was sharp curve.

14. PW-17, Judhya Devi stated that at the time of accident, vehicle was being driven by the petitioner/accused in high speed. If the statements made by aforesaid witnesses, who have supported the case of the prosecution are read in conjunction juxtaposing each other, it can be inferred that none of these witnesses have stated something specific with regard to rash and negligent driving by the petitioner-accused, rather all these witnesses, as taken note hereinabove, simply stated that at the time of accident vehicle was being driven in high speed. Mere factum, if any, of high speed is not sufficient to conclude rash and negligent driving on the part of the driver, rather it was incumbent upon the prosecution to prove on record by leading specific evidence, if any, with regard to the alleged rash and negligent driving of the vehicle by the petitioner. None of the prosecution witnesses have stated something specific with regard to rash and negligent driving of the vehicle being driven by the petitioner at the time of the accident, which could be one of the guiding factors while ascertaining the rashness and negligence, if ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 9 any, on the part of the petitioner-accused and as such, learned courts below erred in holding petitioner-accused guilty of having committed .

the offence punishable under Sections 279,337 and 338 of IPC.

15. It is well settled that a person cannot be held criminally accountable for his rashness and negligence merely because evil consequences flow from his act, rather rashness must be such as to endanger human life or personal safety of others. Similarly, for criminal liability, the rashness or negligence must show a disregard for human life or personal safety of others. Question whether an act is criminally rash or negligent is question of fact depending upon the circumstances of particular case and as such, needs to be elucidated minutely and with certain degree of precision. But in the instant case, prosecution was unable to prove beyond reasonable doubt negligence, if any, on the part of the petitioner-accused. In this regard, reliance is placed upon the judgment passed by the Hon'ble Apex Court in Braham Dass versus State of H.P. (2009) 7 Supreme Court Cases 353. The relevant para No. 6 and 8 are reproduced herein below:-

"6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the appellant-accused was negligent in any way. On the contrary what has been stated is that one person had gone to the rooftop and the driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the rooftop of the bus. Learned counsel for the respondent on the other hand submitted that PW-1 had stated that the conductor had told the ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 10 driver that one passenger was still on the roof of the bus and the driver started the bus.

8. Section 279 deals with rash driving or riding on a pubic way. A bare reading of the provision makes it clear .

that it must be established that the accused was driving any vehicle on a public way in manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sic) negligence. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for brining on application of either Section 270 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."

16. The Hon'ble Apex Court in case titled "State of Karnataka v. Satish,"1998 (8) SCC 493. The relevant paras of which are being reproduced herein below:-

"1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka.

2. We have examined the record and heard learned counsel for the parties.

::: Downloaded on - 02/06/2022 20:02:56 :::CIS 11

3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has .

been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.

4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed".

"High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case.

In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

17. At this stage, this Court also 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, wherein it has been observed as follows:-

25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 12 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 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 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."

18. There cannot be any quarrel, whatsoever, with regard to aforesaid observations made by the Hon'ble Apex Court with regard to the careless/reckless driving of the drivers and drivers driving under the influence of alcohol deserves to be punished but in the present case careful perusal of evidence adduced on record by the prosecution, nowhere suggest that the prosecution was able to prove beyond reasonable doubt that ill-fated vehicle was being driven by the petitioner-accused in rash and negligent manner.

19. After having carefully perused the record and the statements of the witnesses and applying ratio of law laid down by the Hon'ble Apex Court, this court is of the view that the judgments passed by the courts below are not based upon correct appreciation ::: Downloaded on - 02/06/2022 20:02:56 :::CIS 13 of the evidence adduced on record and as such, same deserve to be quashed and set-aside.

20. Consequently, in view of the detailed discussion made herein above, the present petition is allowed and the judgments passed by the courts below are quashed and set-aside. Accordingly, petitioner-accused is acquitted of the charges so framed against him.

His bail bonds are ordered to be discharged and interim order, if any, is vacated. All applications, if any, also stand disposed of.




    30th May, 2022
                         r                                 (Sandeep Sharma),

          (shankar)                                             Judge








                                               ::: Downloaded on - 02/06/2022 20:02:56 :::CIS

Unlock Advanced Research with PRISMAI

Himachal Pradesh High Court