Himachal Pradesh High Court
Janki Dass Thakur vs State Of Himachal Pradesh on 21 June, 2017
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 134 of 2009
Judgment reserved on 10th April 2017.
Date of Decision 21st June, 2017
________________________________________________________
Janki Dass Thakur ....Petitioner
Versus
State of Himachal Pradesh ....Respondent
________________________________________________________
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes.
______________________________________________________________ For the Petitioner: Shri O.C. Sharma, Advocate For the Respondent: Shri Pankaj Negi, Deputy Advocate General.
_____________________________________________________________ Vivek Singh Thakur, J.
In instant petition, petitioner (hereinafter referred to as the accused) has assailed his conviction and sentence under Sections 279, 337, 338 and 201 of Indian Penal Code and also under Section 187 of Motor Vehicles Act, imposed upon him vide judgment dated 12.1.2009 passed by learned Judicial Magistrate 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 2 1st Class, Kasuali in criminal case No. 136/2 of 2007/2001, title State vs. Janki Dass Thakur and affirmed by learned Additional .
Sessions Judge, Solan vide judgment dated 25.6.2009 passed in criminal appeal No. 6-S/10 of 2009.
2. Prosecution case is that on 7.12.2000 at about 6.30 PM accused drove a car bearing No. DL-3CB-7513 in rash and negligent manner near main bazar, Kasuali so as endangering human life and personal safety and fled from spot after hitting motor cycle being driven by Gian Singh (PW1), causing injuries to motor cycle driver Gian Singh and pillion rider Virender Kumar (PW3) and also damaging motor cycle. Defence of accused is denial simplicitor.
3. I have heard learned counsel for parties and have also gone through entire record of case.
4. In a revisional jurisdiction, this Court can evaluate the record for the purpose of satisfying as to the correctness, legality or propriety of finding, sentence or order recorded or passed and also as to the regularity of any proceedings of inferior Court situated in its local jurisdiction. This Court can also interfere in case there is violation of justice or misuse of judicial mechanism or procedure and can also look into correctness of sentence and definitely the power can be exercised to prevent ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 3 the abuse of process or miscarriage of justice or to correct irregularities and illegalities committed by inferior criminal Court .
in its judicial process.
5. On 7.12.2000 PW8 Narveer Singh Rathor the then SHO, P.S. Kasauli, present on bus stop, received information about occurrence of accident at some distance from bus stand, whereupon he rushed to spot and recorded statement of PW3 Virender Kumar Ext.PW8/A under Section 154 Cr.P.C. The said statement was sent to police station as Ruka through C. Sudhir Kumar in pursuance to which FIR Ext.PW6/A was recorded at 7.10 PM. In his statement, PW3 Virender stated that at about 6.30 PM he was coming to home along with his co-employee Gian Singh on his motor cycle No. HYE-601 and on reaching near bus stand, Kasuali they noticed a Fiat NE car No. DL-3CB-7513 coming from opposite side with high speed. Gian Singh slowed down his speed and took his motor cycle towards left side almost in stationery position, but car, coming in high speed, hit the motor cycle, as a result of which he and motor cyclist Gian Singh fell down and driver of car fled away from spot and there were two occupants in the car. Driver was a young person and he and motor cyclist Gian Singh suffered injuries on various parts of body in this accident.
::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 46. Investigating Officer prepared spot map Ext.PW8/B, took motor cycle along with documents in possession vide memo .
Ext.PW8/C and also car No. DL-3CB-7513 vide memo Ext.PW5/A. He also prepared spot map Ext.PW5/D from where car was taken in possession. Documents of vehicle were also produced by PW5 J.S. Dass, owner of car, which were also taken in possession vide memo Ext.PW5/B. Driving licence of driver of car/accused Janki Ram Ext.PX was also taken in possession vide memo Ext.PW2/A. Injured Gian Singh and Virender as well as driver Janki Dass were medically examined by PW7 Dr.Arun Kumar at 7.45 PM and 9 PM respectively and their MLCs Ext.PW7/A to Ext.PW7/C were received by Investigating Officer. Vehicles were also mechanically examined and mechanical report of motor cycle Ext.PY and car Ext.PZ were taken on record. PW4 Nanak Chand was found to be another person sitting in car at the time of accident. Car was taken in possession in his presence and his statement Ext.PA was also recorded. Photographs Ext.P1 to Ext.P5 of car involved in accident were developed from negatives Ext.P6 to Ext.P10 and photographs and negatives were placed on record. After completion of investigation, challan was presented in Court and notice of accusation under Sections 279, 337 and 338 and also under Section 201 of Indian Penal Code read with ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 5 Sections 185 and 187 of Motor Vehicles Act was put to accused.
On pleading not guilty, trial was commenced.
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7. Prosecution examined as many as eight witnesses to prove its case. After recording statement under Section 313 Cr.P.C., accused preferred not to lead any defence evidence. On conclusion of trial, accused was convicted under Sections 279, 337 and 338 of Indian Penal Code and under Section 187 of Motor Vehicles Act by learned Judicial Magistrate 1st Class, Kasauli, details of which are as under:-
Section 279 IPC r The convict is awarded simple imprisonment for a period of six months and is fined in the sum of Rs.1000/-. In case of non-payment of fine, the convict will undergo default imprisonment for a period of one month.
Section 337 IPC The accused is awarded simple imprisonment for a period of six months and is fined in the sum of Rs.500/-. In case of non-payment of fine, the convict will further undergo default imprisonment for a period of one month.
Section 338 IPC The convict is awarded simple imprisonment for a period of one year and is also fined in the sum of Rs.1000/-.::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 6
In case of non-payment of fine, the convict will further undergo default imprisonment for a period of two .
months.
Section 187 of M.V.Act The convict is awarded simple imprisonment for a period of six months and is also fined in the sum of Rs.1000/-. In case of non-payment of fine, the convict will undergo default imprisonment for a period of one month.
8. Appeal preferred by accused, against his conviction and sentence passed by learned Judicial Magistrate 1st Class, was dismissed by learned Additional Sessions Judge, Solan. Hence present petition under Section 397 read with Section 401 of Code of Criminal Procedure.
9. I have heard learned counsel for the parties and have also gone through the record.
10. It is argued on behalf of petitioner that there is no conclusive evidence on record so as to prove involvement of petitioner as well as vehicle No. DL-3CB-7513, as PW1 no where alleged that he had seen and identified the driver, whereas PW3 though stated that he had identified accused in front of police as driver of car in question, but in cross examination, he has stated that police had informed about vehicle and driver and also that ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 7 PW3 had not stated complete number of vehicle, but only DL-
7513 as a number of vehicle involved and there might be so .
many vehicles bearing No. DL-7513 and it has not come in evidence that it was only vehicle bearing No. 7513 in the area in question. It is also contended that PW4 Nanak Chand desisted from supporting prosecution case and despite cross examining him by learned Assistant Public Prosecutor, nothing could be extracted proving the guilt of accused. It is further argued that PW5 J.S. Dass, owner of vehicle, had categorically stated that vehicle No.DL-7513 was being driven by himself only and none else. It is also pointed out that in his cross examination, PW3 Virender Kumar stated that he did not know that police had come on spot or not, which demolished the case of prosecution, according to which police had reached at the spot and after recording statement of PW3 under Section 154 Cr.P.C., had taken injured to the hospital. Learned defence counsel has relied upon judgment of Coordinate Bench of this Court in Rakesh Kumar vs. State of Himachal Pradesh 2013(2) Shim.L.C. 985 stating that in similar circumstances, accused was acquitted by this Court.
Therefore, it is submitted that in this case findings of learned trial Court and affirmed by learned Appellate Court are perverse ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 8 and deserve to be interferred with and accused is entitled to be acquitted.
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11. On contrary, learned Deputy Advocate General has supported the impugned judgments and stated that PW1 and PW3 duly corroborated case of prosecution and accused himself handed over his driving licence immediately after the accident to the police and further the driving of vehicle is not disputed in cross examination and accused was also medically examined on the same day and he was found under the influence of alcohol but not intoxicated. It is further submitted by learned Deputy Advocate General that in accident grievous injuries caused to PW1 and hitting the wrong side motor cycle by car, mentioned in spot map, is also not questioned in cross examination of Investigating Officer and therefore, there is no irregularity or illegality so as to call for interference by this Court in the impugned judgments as the prosecution has proved its case beyond reasonable doubt.
12. PW3 in his statement under Section 154 Cr.P.C.
Ext.PW8/A, recorded immediately after the accident, has clearly mentioned description of car involved in accident as Fiat NE Car No. DL-3CB-7513. At the time of examining in Court PW1 has also mentioned description of car as cherry coloured car bearing No. ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 9 DL-3CB-7513, which hit his motor cycle. From photographs Ext.P1 to Ext.P5 which were not disputed as to of some other car, .
it is evident that car bearing No. DL-3CB-7513 is of cherry colour and is of Fiat NE model. PW5 J.S. Dass owner of vehicle also stated that he came to know from police about accident of his vehicle in the evening of day of incident. He also admitted taking of his car in possession vide memo Ext.PW5/A on the same day.
13. Vehicles involved in accident were also subjected to mechanical examination and mechanical reports of motor cycle and car were also placed on record as Ext.PY and Ext.PZ respectively which were also not disputed by accused as there is not even a word in cross examination to the Investigating Officer with respect to these reports.
14. As per report Ext.PY, front mudguard, head light, long guard and foot rest of motor cycle No. HYE-601 were found damaged, whereas as per report Ext.PZ, front show, bumper, mudguard and head light of driver side of car were found damaged. These reports corroborate case of prosecution as according to prosecution case car driver hit motor cycle after coming to its extreme right side and driver seat of vehicle is on right side and same side of car was found to be damaged immediately after accident.
::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 1015. No doubt, at the time of examination in Court, PW3 mentioned the number of car as DL-7513, but he was examined .
in Court after seven years and such a minor discrepancy was bound to occur and it is a fact that he has mentioned the number of vehicle as 7513 which also corrobroates the statement of PW1 as well as his own statement Ext.PW8/A recorded under Sectiion 154 Cr.P.C. Therefore, contention of accused that identity of vehicle involved in accident has not been proved is not sustainable.
16. PW1, in his deposition in Court, stated that later on he came to know that police had arrested accused Janaki Dass.
There is no suggestion in his cross examination that accused was not driving the car or accused was not seen by him driving the car. PW3, in Court, categorically stated that at the time of accident he had seen and identified the driver of car and later on, when he was asked to identify the driver in front of police then he had clearly identified the accused Janki Dass as a person who was driving the car. In cross examination he denied that accused was not driving the vehicle on that day. PW2 Naginder Thakur stated that accused Janki Dass had handed over his driving licence to police vide memo Ext.PW2/A. Ext.PW2/A is dated 7.12.2000 and it proves that immediately after the ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 11 accident accused Janki Dass handed over his driving licence to police. Despite opportunity, no cross examination was preferred .
to PW2 on behalf of accused. Further no question to Investigating Officer PW8 was put disputing Ext.PW2/A.
17. So far as statement of hostile witness is concerned, Hon'ble Supreme Court in Raja and others vs. State of Karnataka (2016)10 SCC 506 has held as under:-
"32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu vs. State (NCT of Delhi), (2011)2 SCC 36, by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P.(1991)3 SCC 637, and Koli Lakhmanbhai Chanabhai vs. State of Gujarat (1999)8 SCC
624. It was enounced that the evidence of a hostile witness remains admissible and is open for a court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record." (at page 516)
18. PW4 was declared hostile for resiling from his earlier statement recorded under Section 161 Cr.P.C., but he in cross examination by learned Public Prosecutor admitted that he had made his statement to police that his house was adjacent to PW5 J.S. Dass, owner of cherry coloured vehicle bearing No. DL-3CB-
::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 127513 who drove it himself and sometimes it was driven by his truck driver Janki Dass i.e. accused. In cross examination to this .
witness this version of his statement was not disputed. It falsifies the stand of PW5 that he only used to drive his vehicle and none-
else. Therefore, there is sufficient evidence on record to hold that it was accused who was driving car No. DL-3CB-7513 at the time of accident.
19. MLCs of injured Ext.PW7/A and Ext.PW7/B and also that of accused Ext.PW7/C were proved by examining Dr.Arun Kumar as PW7. Despite opportunity, these MLCs have not been disputed as there is no cross examination on behalf of accused to this witness. As per MLC Ext.PW7/A, driver-cum-owner of motor cycle Gian Singh had suffered grievous injuries whereas Virender Kumar PW3 had sustained simple injuries. There was no injury to accused Janki Dass but he was found under influence of alcohol and smell of alcohol was present on breathing and he was conscious and well oriented to time and place but his pupil was found dilated with slow response to light. Accused was examined at 9 PM on the day of incident i.e. within 2/3 hours of accident.
20. In Rakesh Kumar's case supra, facts are different and distinct to the present case. In that case, only eye witness had not supported the prosecution case at all and he had ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 13 categorically deposed that he did not see the accused driving the vehicle at the time of occurrence of accident and even in his .
statement recorded by police it was mentioned that one Rakesh Kumar was driving the vehicle, but for want of identification of accused by said witness, the accused could not be connected with offence as it was also not on record that wherefrom name of accused came to know to that witness. Whereas, in present case complainant, injured and accused are from same locality knowing each other and not only the witnesses had identified the accused but as discussed supra, there is sufficient material on record to connect the accused with commission of offence in question. In these given facts and circumstances, decision referred on behalf of accused is not applicable in present case.
21. Learned counsel for the accused has relied upon judgment passed by Delhi High Court in case Jitender Singh vs. State 2012(2) Criminal Court Cases 169 (Delhi) wherein driver of offending vehicle was acquitted for want of proper identification by eye witness. The facts and circumstances of that case are not identical to the present case. In that case, eye witness had seen the driver of offending vehicle from back side when he fled after jumping from the truck and he was not even able to tell in which direction driver ran away and therefore it was held that eye ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 14 witness admittedly had no occasion to see the accused driving the vehicle. Whereas in instant case, PW3 categorically stated .
that he had seen the accused driving the offending car at the time of accident and statement of PW3 is duly corroborated by other evidence on record, as discussed supra.
22. Failure to conduct test identification parade is also always not fatal because Hon'ble Apex Court in case Ashwani Kumar vs. State of Punjab reported in (2015)6 SCC 308 has held that failure to conduct test identification parade of accused is irrelevant in case witness is trustworthy and reliable and identified the accused in Court. In present case, nothing has been brought on record to discredit the statements of PW1 and PW3, wherein they categorically identified the accused, as driver of offending vehicle.
23. Therefore, in view of above discussion involvement of vehicle No. DL-3CB-7513 in accident, complicity of accused in said accident and also driving of vehicle No.DL-3CB-7513 under influence of alcohol in rash and negligent manner stand proved on record beyond all reasonable doubts. Therefore, there is no material irregularity, illegality in judgments passed by learned Courts below warranting interference of this Court under revisional jurisdiction. Learned Courts below have completely ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 15 and correctly appreciated the evidence on record and have rightly convicted accused under Sections 279, 337 and 338 IPC .
and under Section 187 of Motor Vehicles Act.
24. Mr.O.C. Sharma, learned counsel for the petitioner, also submits that accident took place in the year 2000 and accused has been undergoing the agony of long drawn litigation for the last more than 16 years as he is a convict since the year 2007, he is also facing trauma as a convict since last 10 years. It is also submitted on behalf of petitioner that at the time of accident he was 35 years old and during the intervening period his family responsibilities have also increased. Therefore, he alternatively submits that keeping in view the facts of present case and also the fact that accused is first offender and except present incident there is no other record of involvement of accused in committing the offence, benefit of Probation of Offenders Act be extended to him or at least taking a lenient view in the matter in the interest of justice sentence imposed upon the petitioner be reduced. Reliance has been put on judgment passed by this Court in case Karnail Singh vs. State of H.P. 2012(4) Criminal Court Cases 736 (H.P.) wherein sentence was reduced till rising of Court but fine was enhanced. In offence under Section 304-A IPC, involved in that case, there was no ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 16 maximum limit for imposition of fine whereas in present case maximum five which can be imposed has already been imposed.
.
25. Accused has also put reliance on another judgment of this Court in case Suresh Kumar vs. State of H.P. 2014(2) Shim.L.C. 1093 wherein benefit of Probation of Offenders Act 1958 was extended to the accused. In that case accused was convicted only under Section 279 IPC, whereas in present case petitioner has been convicted under Sections 279, 337 and 338 IPC and under Section 185 of Motor Vehicles Act and also at the time of driving of vehicle accused was found under the influence of alcohol and had fled from spot without stopping his vehicle even for a while. It is not a case where because of fear of mob, accused fled but it is case where accused did not care for person hit by his vehicle. Therefore, in my opinion it is not a fit case to release the accused on probation. However, keeping in view the inordinate long span between occurrence and disposal of present petition, a lenient view deserves to be taken in the matter by reducing sentence imposed upon him and in my opinion, it would be appropriate to reduce the sentence as under:-
Section 279 IPC The convict is awarded simple imprisonment for a period of fifteen days with fine in the sum of Rs.1000/-. In case of non-payment of fine, the convict will ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 17 undergo default imprisonment for a period of five days.
.
Section 337 IPC The accused is awarded simple imprisonment for a period of fifteen days with fine in the sum of Rs.500/-. In case of non-payment of fine, the convict will further undergo default imprisonment for a period of five days.
Section 338 IPC r to The convict is awarded imprisonment for a period of one month with fine in the sum of Rs.1000/-. In case simple of non-payment of fine, the convict will further undergo default imprisonment for a period of fifteen days.
Section 187 of M.V.Act The convict is awarded simple imprisonment for a period of fifteen days with fine in the sum of Rs.1000/-. In case of non-payment of fine, the convict will undergo default imprisonment for a period of five days.
26. The petition is accordingly partly allowed. Conviction of accused is upheld with the above-mentioned sentence, as modified in this judgment. Learned trial Court is also directed to execute the sentence so passed by this Court forthwith.
Personal and surety bonds furnished by accused stand cancelled.
Record of learned Courts below be sent back along with a copy of ::: Downloaded on - 21/06/2017 23:59:12 :::HCHP 18 this judgment forthwith. Petition stands disposed of accordingly including all pending miscellaneous application(s), if any.
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June 21, 2017. (Vivek Singh Thakur),
ms Judge
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