Himachal Pradesh High Court
Amar Dev vs State Of Himachal Pradesh on 17 November, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.: 288 of 2014
a/w Cr. Revision No.: 292 of 2014
Reserved on: 09.11.2016
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Date of Decision: 17.11.2016
______________________________________________________________________
Cr. Revision No.: 288 of 2014
Amar Dev ....Petitioner.
Vs.
State of Himachal Pradesh .....Respondent.
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Cr. Revision No.: 292 of 2014
Nand Lal ....Petitioner.
rt
State of Himachal Pradesh
Vs.
.....Respondent.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
Cr. Revision No.: 288 of 2014 a/w
Cr. Revision No.: 292 of 2014
For the petitioner(s): Mr. Gaurav Sharma, Advocate.
For the respondent(s): Mr. Vikram Thakur, Deputy Advocate
General.
Ajay Mohan Goel, Judge:
These two revision petitions are being decided by a common judgment as both the petitions arise out of a common judgment passed by the Court of learned Additional Sessions Judge-(II), Shimla in Criminal Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 2Appeal No. 105-S/10 of 2014/2012 and Criminal Appeal No. 106-S/10 of 2014/2012 dated 01.09.2014, vide which learned appellate Court while dismissing the appeals so filed by both the present petitioners, upheld .
the judgment of conviction passed against the petitioners/accused by the Court of learned Chief Judicial Magistrate, Shimla in Criminal Case No. 30/2 of 2010/2007 dated 03.04.2012, whereby the learned trial Court convicted accused Nand Lal for commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and accused Amar of Dev for commission of offences punishable under Sections 337 and 338 of the Indian Penal Code and sentenced Nand Lal to undergo simple rt imprisonment for three months and to pay a fine of `1,000/- under Section 279 of the Indian Penal Code, to undergo simple imprisonment for three months and to pay a fine of `500/- under Section 337 of the Indian Penal Code and to undergo simple imprisonment for one year and to pay a fine of `1,000/- under Section 338 of the Indian Penal Code and sentenced Amar Dev to undergo simple imprisonment for three months and to pay a fine of `500/-under Section 337 of the Indian Penal Code and to undergo simple imprisonment for six months and to pay a fine of `1,000/- under Section 338 of the Indian Penal Code.
2. The case of the prosecution in brief was that on 17.09.2007, Lal Singh, who at the relevant time was a school-going student boarded a bus bearing registration No. HP-51-4777, which was being driven by accused Nand Lal and conductor of which bus was accused Amar Dev.
Lal Singh boarded the said bus from BCS, Shimla and the bus was on its ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 3 way towards Shimla Bus Stand. This bus was full of passengers which also included school students. When the said bus left BCS Bus Stand, accused Amar Dev, conductor of the Bus did not take precaution to close .
the doors of the same. Accused driver drove the bus in high speed and when the bus reached near Jai Mata Truck Union, New Shimla at around 9:30 a.m., the driver of the bus abruptly and forcefully applied breaks which resulted in a jerk and as a result of the same, Lal Singh, who was standing near the door was thrown out from the bus and he fell on the of road, as a result of which, he sustained multiple injuries on his person.
After the accident, the injured was taken to Ayurvedic Hospital Chhota rt Shimla, from where he was referred to IGMC, Shimla. Police at Police Post, New Shimla was informed about the said accident by the Health Authorities of Ayurvedic Hospital, Chotta Shimla and from there HC Budhi Singh was deputed to inquire into the matter. He went to IGMC, Shimla, but the injured was not found fit to give any statement and under these circumstances, one of the passengers who was travelling in the said bus, namely, Kamal Sood gave a statement under Section 154 of the Code of Criminal Procedure to HC Budhi Singh, on the basis of which, FIR was registered against the accused. Site plan etc. was prepared and the MLC and other reports of the injured were taken into possession by the police. The bus was also got mechanically examined and necessary mechanical report of the same was also obtained by the police.
::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 43. After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly accused driver was charged for commission of offences .
punishable under Sections 279, 337 and 338 of the Indian Penal Code, whereas accused Conductor was charged for commission of offences punishable under Sections 337 and 338 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
4. On the basis of evidence produced on record by the of prosecution both ocular as well as documentary, learned trial Court held that the prosecution was able to prove that accused No. 1, i.e. the driver rt of the bus was driving the bus in high speed and that he abruptly applied forceful brake without any reasonable cause, which resulted in a jerk, as result of which, Lal Singh was hurled out of the door of the vehicle and fell on the road and sustained injuries. Learned trial Court further held that accused conductor had not taken precaution to ensure that doors of the vehicle were closed before its movement, which had resulted in simple as well as grievous injuries on the person of Lal Singh. On these bases, learned trial Court convicted the accused driver for commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, whereas accused No. 2 was convicted for commission of offences punishable under Sections 337 and 338 of the Indian Penal Code.
5. In appeal, learned appellate Court while dismissing the appeals filed both by the accused driver and accused conductor, affirmed the findings of conviction returned against them by the learned trial ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 5 Court. It was held by the learned appellate Court that the factum of the injured travelling in the bus was not in dispute and this was proved by eye witnesses Kamal Sood (PW-1) and Chaman Lal (PW-3). Learned .
appellate Court further held that it was also proved fact that injured fell down from the bus and was rushed to IGMC, Shimla. It further held that the only line of defence raised by the accused was that the injured was opening the window time and again and he was asked by the conductor not to do so. The injured and his companions were about to beat the of conductor and driver and further the bus which was being driven in the second gear was not in speed. Learned appellate Court while disbelieving rt the said version of the accused held that there was enough evidence to show that accused persons had acted in a rash and negligent manner while driving the vehicle and not closing the door from inside at the time of accident and that accident was proved with all necessary details by the eye witnesses, therefore, there was no error committed by the learned trial Court in appreciating the evidence. On these basis, learned appellate Court while upholding the judgment of conviction passed by the learned trial Court dismissed the appeals filed by the driver as well as the conductor.
6. Feeling aggrieved by the said judgments passed by both the learned Courts below, the accused driver and the accused conductor have filed these revision petitions.
::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 67. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the learned Courts below.
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8. The factum of the accident having been caused on account of rash and negligent driving on the part of accused driver and omission on the part of the accused driver in closing the doors of the bus from inside has been held against the accused by both the learned Courts below. The finding so arrived at by the learned trial Court is based on the of appreciation of prosecution evidence, which includes the statements of PW-1 Kamal Sood, i.e. the complainant, PW-2 Lal Singh, the injured rt person and PW-3 Chaman Lal, who was also one of the passengers travelling at the relevant time in the bus.
9. Dr. Abhinay Sharma, who entered the witness box as PW-7 deposed that on 17.09.2007 at about 11:30 a.m., he examined Lal Chand, who was brought by Police with alleged injuries which he had sustained by falling down from a private bus. He also proved the MLC Ex. PW7/A. The final opinion of the doctor as it finds mention in Ex.
PW7/A is as under:
"Final opinion:
Injuries 1,2,3,4 and 5 were simple. As per case summary from Surgery, the injury was dangerous to life."
10. Mechanical report of the bus is Ex. PW9/A and the same has been duly proved by HC Gian Chand PW-9, who was serving as a Motor ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 7 Mechanic in the Police Department and who had mechanically examined the bus in issue. It is evident from a perusal of his statement as well as his report that there was no mechanical defect in the vehicle.
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11. In these circumstances, what has to be examined by this Court while exercising its revisional jurisdiction is whether the finding of conviction returned against both the accused by the learned trial Court and upheld by the learned appellate Court is perverse finding or the same is borne out from the records of the case.
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12. As I have already mentioned above, PW-1 Kamal Sood and PW-3 Chaman Lal are eye witnesses. PW-1 Kamal Sood has clearly and rt categorically stated that the accident took place on account of rash and negligent driving of the driver of the bus, who all of a sudden applied the breaks of the same without any obvious reason and further on account of the negligence of the conductor, who had not properly closed the doors of the bus. Though this witness was subjected to lengthy cross-examination by the defence, however, nothing could be elucidated from him by the defence to cast suspicion on his deposition.
13. Similarly, PW-3 Chaman Lal who is also an eye witness and was travelling in the bus has also clearly deposed that the accident took place as a result of rash and negligent driving of the driver of the bus who abruptly applied the breaks and further on account of the negligence on the part of the conductor of the bus who had not properly closed the doors of the same. The credibility of this witness also could not be impinged in his cross-examination by the defence.
::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 814. Besides these two witnesses, the complainant entered into the witness box as PW-2 and he also duly proved the case of the prosecution and his credibility also could not be impinged in his cross-
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examination by the defence.
15. The Investigating Officer HC Budhi Singh, who entered the witness box as PW-10 also duly corroborated the case of the prosecution and though he was also subjected to lengthy cross-examination, however, his credibility could also not be impinged by the defence.
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16. On the other hand, the defence could not probablise and establish its case that injured Lal Singh was opening the door of the bus rt again and again and he was not listening to the conductor and the boys who were alongwith him were on the verge of physically abusing the conductor and the driver.
17. Therefore, in this view of the matter, on the basis of the evidence, which was produced on record by the prosecution both ocular as well as documentary, it cannot be said that the finding of conviction returned against the accused by the learned trial Court and affirmed by the learned appellate Court is perverse or not borne out from the records of the case. Even during the course of arguments, learned counsel for the petitioner could not point out that what was the perversity with the findings so returned by both the learned Courts below against the petitioners viz-a-viz evidence on record.
18. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 9 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 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.
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19. It has been reiterated by the Hon'ble Supreme Court in Shlok Bhardwaj Vs. Runika Bhardwaj and others (2015) 2 Supreme Court rt Cases 721 that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence.
20. 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 another view is possible. The revisional court is not ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 10 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 of the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision rt in exercise of their revisional jurisdiction.
21. However, taking into consideration the alternative argument made by the learned counsel for the petitioners that this Court may sympathetically consider the reduction of the sentences imposed upon the petitioners in view of the fact that the petitioners have been undergoing the ordeal of trial since 2007, in my considered view, the interest of justice will be served in case the sentence imposed upon accused Nand Lal by the learned trial Court under Section 338 of the Indian Penal Code is modified from one year to three months and similarly the sentence imposed upon accused Amar Dev under Section 338 of the Indian Penal Code is reduced from six months to three months. Ordered accordingly. However, it is made clear that fine imposed by the learned trial Court against both the petitioners for being convicted under Section 338 of the Indian Penal Code is upheld and is ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP 11 not modified. Similarly, the sentence and fine imposed against petitioner Nand Lal under Sections 279 and 337 of the Indian Penal Code is upheld and not modified and sentence and fine imposed against petitioner Amar .
Dev under Section 337 of the Indian Penal Code is upheld and not modified.
The revision petitions are disposed of in above terms.
(Ajay Mohan Goel) of Judge November 17, 2016 (bhupender) rt ::: Downloaded on - 15/04/2017 21:34:17 :::HCHP