Himachal Pradesh High Court
Devender Singh vs State Of Hp on 19 October, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.R. No. 132 of 2007.
Reserved on 22.9.2016.
Decided on: 19.10.2016.
.
Devender Singh ....Petitioner.
Versus
State of HP ... Respondent.
................................................................................................
of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
rt No.
For the petitioner. : Mr. Rajiv Jiwan, Advocate.
For respondent. : Mr. Vikram Thakur, Ms. Parul Negi and
Mr. Puneet Rajta, Dy. Advocate Generals
Ajay Mohan Goel, J.
By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Kullu in Cr. Appeal No. 21/05 dated 12.9.2007 vide which learned appellate court while dismissing the appeal filed by the present petitioner upheld the judgment of conviction passed by the Court of learned Judicial Magistrate 1st Class, Manali, District Kullu in Criminal Case No. 33-1/2004/127-II//2004 dated 1.7.2005 whereby learned trial court convicted the present petitioner for commission of offences punishable under Sections 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 2279, 337, 338 and 304A of IPC and sentenced him to undergo rigorous imprisonment for a period of 3 months and to pay fine of `1000/- under Section 279 IPC, to undergo rigorous .
imprisonment for a period of 3 months and to pay fine of `500/-
under Section 337 IPC, to undergo rigorous imprisonment for a period of six months and to pay fine of ` 1000/- under Section 338 and to undergo rigorous imprisonment for a period of one of year and to pay fine of ` 2000/- under Section 304A IPC.
2. The case of the prosecution was that on 30.5.2003 at around 9:00 a.m. at camping side Raison, under Police Station rt Manali bus bearing registration No. CH01-&-6575 which was being driven in a rash and negligent manner by the accused hit against a Qualis bearing registration No. HR-38-GT-4266 which was coming from the opposite side resulting in death of three persons and causing grievous injuries to one and simple as well as grievous injuries to two other persons, all occupants of the Qualis. As per prosecution, the accident in issue occurred on account of rash and negligent driving of the accused. After the occurrence of accident, the matter was reported by Anirudh Chaterji one of the occupant of the bus in question to the police, on the basis of which his statement under Section 154 Cr.P.C.
was recorded. This was followed by registration of FIR Ext.
PW3/A. HC Lal Singh visited the spot and carried out investigation. He prepared the spot map Ext. PW6/B, seized ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 3 offended vehicle and Qualis. Dead bodies were sent to the hospital for post-mortem and reports were also obtained. Both the vehicles were got mechanically examined and reports were .
also obtained.
3. After completion of investigation challan was filed in the Court and as a prima facie case was found against the accused for commission of offences punishable under Sections of 279 337, 338 and 304A IPC, notice of accusation was put to him, to which he pleaded not guilty and claimed trial.
4. On rt the basis of evidence produced by the prosecution both ocular as well as documentary, learned trial court came to the conclusion that the prosecution had successfully proved on record that the accident occurred due to rash and negligent driving of the accused which resulted in causing death of three persons and simple as well as grievous injuries to others. Accordingly on these basis learned trial court convicted the accused for commission of offences punishable under Sections 279, 337, 338 and 304A of the IPC.
5. It was held by learned trial court that the contention of the defence that prosecution had failed to prove on record that on the relevant date, time and place the offending bus was not being driven by the accused was without any force, as the accused himself had admitted in his statement recorded under Section 313 Cr.P.C. that he was driving the offending bus on the ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 4 relevant date, time and place when the said bus met with an accident. Learned trial court further took note of the fact that the contention of the accused was that though he was driving the ill-
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fated bus at the time when the accident took place, however, the accident did not occur due to his rash and negligent driving. It was further held by learned trial court that photographs Ext. P1 to P4 clearly showed that Qualis was hit by the offending bus in of the middle of the road which resulted in death of Anish, Kamla and Satish Verma and caused grievous injuries to Gourav and simple as well as grievous injuries to Saurav and Manoj Singh, all rt occupants of the Qualis. Learned trial court also took note of the fact that though PW2, Gopal Singh and PW3, Sanjay Ratan had not supported the case of the prosecution, however, keeping in view the fact that both these witnesses categorically stated that they had not witnessed the occurrence of the accident the factum of their not supporting the case of the prosecution was not all that material especially when the case of the prosecution was duly supported by both injured i.e. the occupants of the Qualis who were eye witnesses to the occurrence of the accident.
On these basis it was held by learned trial court that prosecution had successfully proved its case beyond all reasonable doubt against the accused.
6. Feeling aggrieved by the said judgment passed by the learned trial Court, accused filed an appeal which was ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 5 dismissed by the learned appellate court vide judgment dated 12.9.2007.
7. Learned appellate court while upholding the .
judgment of conviction passed by learned trial court held that the contention of the accused that his identity as being the person who was driving the bus in question at the time when the accident took place was not proved by the accused had no merit, of as it stood admitted by the accused in his statement recorded under Section 313 Cr.P.C. that it was he who was driving the bus when the accident took place. Learned appellate court also took rt note of the fact that according to the accused the accident had not taken place due to his rash and negligent driving but had taken place on account of rash and negligent driving of the driver of the Qualis. It was further held by learned appellate court that both PW4 as well as PW5 who were occupants of the Qualis and were injured in the accident had testified that accident occurred on account of rash and negligent driving of the accused and despite the fact that both these witnesses were subjected to lengthy cross examination, however, nothing could be elucidated from their cross examination by the defence to strengthen its case. Learned appellate court also took note of the fact that PW6 HC Lal Singh who was the Investigating Officer in the case had deposed with regard to the registration of FIR, preparation of the site plan, taking of photographs of the spot as well as having got ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 6 the vehicles mechanically examined and obtaining mechanical reports thereof. Learned appellate court also took note of the fact that Investigating Officer stated in his examination that as .
per the investigation conducted by him accident had occurred on account of rash and negligent driving of accused Devender Singh. It was further held by learned appellate court that the accused cannot derive any benefit on account of PW2 and PW3 of having turned hostile as both PW4 and PW5 who were eye witnesses to the accident had duly proved the case of the prosecution and their statements were consistent, reliable and rt trustworthy. Learned appellate court also held that learned defence counsel had failed to pinpoint any infirmity in their statements which could have led to learned appellate court to conclude that the accident had not occurred on account of rash and negligent driving on the part of the accused. Learned appellate court also took note of the fact that photographs Ext.
P1 to P4 as well as site plan Ext. PW6/B conclusively proved that Qualis was hit by the bus in the middle of the road. On these basis it was held by learned appellate court that the prosecution had established beyond all reasonable doubt the guilt of the accused and the learned trial court had rightly held that accident took place due to rash and negligent driving of the bus by the accused.
::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 78. Mr. Rajiv Jiwan, learned counsel for the petitioner has strenuously argued that the judgment of conviction passed by learned trial court and upheld by learned appellate court was .
liable to be set aside as the findings recorded to this effect by both the learned courts below were perverse and not borne out from the records of the case. Mr. Jiwan argued both the learned courts below had erred in not appreciating that the prosecution of was not able to prove its case against the accused beyond all reasonable doubt that the alleged accident had in fact taken place on account of rash and negligent driving of the accused. It rt was argued by Mr. Jiwan that the factum of PW2 and PW3 not supporting the case of the prosecution was dealt with in a slipshod manner by both the learned courts below. It was further argued by Mr. Jiwan that the photographs taken of the spot by the prosecution were manipulated and it was evident form the photographs that in fact the bus had been removed from the actual spot of the occurrence of the accident and had been intentionally placed on the wrong side to frame the accused. He also argued that keeping in view the fact that the statement recorded under Section 154 of Cr.P.C. on the basis of which FIR was lodged was not duly proved by the prosecution, the FIR in fact had lost its significance. He also argued that both the learned courts below had failed to appreciate that the accident had in fact taken place on account of the rash and negligent ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 8 driving of the driver of the Qualis who was not even produced by the prosecution in the court and was intentionally withheld by the prosecution. It was further argued by Mr. Jiwan that it stood .
proved from the records of the case that the accident had taken place due to tyre burst and the factum of photographs being taken after removal of the bus from the site was also deposed by PW3. He further argued that the site plan in fact was not of prepared at the spot and the same in fact had authored by the prosecution to frame the accused. On these basis, it was urged by Mr. Jiwan that the judgments passed by both the learned rt courts below were perverse and were liable to be set aside.
9. Mr. Vikram Thakur, learned Deputy Advocate General on the other hand argued that there was neither any perversity with the findings of conviction returned by both the learned courts below nor it could be said that the findings so returned by both the learned courts below were not borne out from the records of the case. Mr. Thakur argued that it stood proved from the evidence which was placed on record by the prosecution that the accident in fact had taken place on account of rash and negligent driving of the accused which had resulted in loss of precious lives in addition to causing grievous as well as simple injuries to the other occupants of the Qualis. Mr. Thakur further argued that it stood proved from the mechanical reports of the vehicle that there was no mechanical defect in either of the ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 9 vehicle which might have had resulted in the occurrence of the accident. He also argued that there was no cross-examination of PW6 by the defence on any of the points which were now being .
agitated in the present revision petition by the learned counsel for the petitioner. Mr. Thakur further argued that the factum of accident having taken place on account of rash and negligent driving of the accused stood duly corroborated by the statements of of PW4 and PW5 and despite the fact that both these witnesses were subjected to lengthy cross examination the credibility of these witnesses could not be impinged by the defence. It was rt further argued by Mr. Thakur that even otherwise when both the learned courts below after appreciation of evidence on record had come to the conclusion that the accident had taken place on account of rash and negligent driving on the part of the accused, the said findings did not call for any interference by this Court in exercise of its revisional jurisdiction especially in view of the fact that the learned counsel for the petitioner had miserably failed to point out that the judgments passed by both the learned counts below were either perverse or the findings returned by them were not borne out from the records of the case. It was thus contended by Mr. Thakur that there was no merit in the present revision petition.
::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 1010. I have heard learned counsel for the parties and also gone through the records of the case and have also perused the judgments passed by the learned Courts below.
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11. It is evident from the records of the case that one of the defence which was taken by the accused before the learned trial court was that the factum of the accused being the person who was driving the bus at the time when the said bus met with of fatal accident was not proved and substantiated by the material placed on record by prosecution. However, this line of defence of the prosecution could not hold water in view of the statement of rt the accused recorded under Section 313 Cr.P.C. wherein in answer to question No.2 he admitted that on the morning of 30.5.2003 around 9:00 a.m. at camping side Raison under police Station Manali he was driving bus bearing registration No. CH01- Y-6575. The mechanical reports of the vehicles are on record as Ext. PW6/L and Ext. PW6/M. A perusal of these two Exhibits demonstrates that it is clearly mentioned in the mechanical reports that there was no mechanical defect in either of the vehicle. The argument of learned counsel for the petitioner that the accident in fact took place due to rash and negligent driving of the driver of Qualis is belied from the fact that a perusal of the spot map which is on record as Ext. PW6/B as well as photographs of the spot which are also on record demonstrate that it was the bus which was being driven in the wrong ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 11 direction. Further the force and impact of the accident on the Qualis vehicle is also evident from the photographs Ext. P1 to P4.
A perusal of the statement of PW6 demonstrates that this .
witness has categorically denied the suggestion given to him in his cross examination that the photographs were taken by him after removing the vehicle from the site of accident. He also categorically denied the suggestion that the spot map was of prepared by him in the Police Station. As far as the contention of learned counsel for the petitioner that the accident took place on account of tyre burst is concerned, there is no such suggestion rt given by the defence to PW6. In fact a perusal of the cross examination of PW6 further demonstrates that there is no specific question put to him that the photographs of the vehicles were in fact taken after removing the "bus" from the actual site of the incident. The question which was put to him is general in nature and was not "bus" specific. Besides this, a perusal of statement of PW4 and PW5 demonstrate that they have duly proved the case of the prosecution that the accident in fact had taken place on account of rash and negligent driving of the driver of the bus in question i.e. the present petitioner. Though both these witnesses are interested witnesses because they were the occupants of Qualis, however, their testimonies are cogent, reliable and inspire confidence. Both these witnesses were subjected to lengthy cross-examination by the defence, ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 12 However, their credibility could not be impinged by the defence.
Therefore, the factum of the accident having taken place on account of rash and negligent driving of the petitioner stands .
duly proved beyond all reasonable doubt on the strength of the these two witnesses by the prosecution. In view of this the factum of PW2 and PW3 having turned hostile is in fact of no consequence and the factum of the complainant on whose of complaint the FIR was lodged having not being examined is of no significance because it is no ones case that no accident had taken place resulting in loss of precious human lives. Therefore, rt in view of the discussion held hereinabove in my considered view it cannot be said that the judgment of conviction passed by learned trial court and upheld by learned appellate court is perverse or the findings returned by both the learned courts below are borne out from the records of the case. Learned counsel for the petitioner during the course of arguments could not point out on the basis of material on record as to what was the perversity with the findings returned either by the learned trial Court or by the learned appellate Court.
12. The judgments relied upon by learned counsel for the petitioner i.e. Thana Ram Vs. State of Haryana, 1996(2) ACC 153 and Gurcharan Singh Vs. State of Himachal Pradesh, 1991 Cri.L.J 771 are of no assistance to the petitioner because in the present case neither it can be said that the petitioner was prejudiced in ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 13 his defence on account of any lapse/omission on the part of the prosecution or in the present case, how the accident had actually taken place had not been clearly and comprehensively stated by .
any of the witnesses.
13. In Thana Ram's case the Investigating Officer was not examined by the prosecution and it was held by the High Court of Punjab and Haryana that as Investigating Officer was a of material witnesses, his non examination cannot be lightly brushed aside and non examination of Investigating Officer was a serious lapse /omission on the part of the prosecution. Coming to rt the facts of the present case herein not only the Investigating Officer has not been examined as PW6 but this witness has categorically proved the case of the prosecution and in his cross-
examination nothing could be elucidated by the defence to disprove the case of the prosecution.
14. In Gurcharan Singh's case it was held by this court that how the accident had actually taken place was not clearly and comprehensively stated by any of the witnesses. Coming to the facts of the present case herein PW4 and PW5 have categorically and comprehensively stated as to how the accident had taken place and their testimonies could not be shattered by the defence in their cross-examination.
15. Therefore, the said judgments are of no assistance to the petitioner in the present case.
::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 1416. 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 of 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 rt treatment which has resulted on the one hand, or on the other hand in some 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 revisional jurisdiction of the High Court does not extend to re-appreciation of evidence.
18. 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 ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 15 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 of the court under Sections 397 to 401 of Cr.P.C. 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 rt 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 capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
19. 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.
20. As already held above, there is no perversity in the judgments passed by the learned Courts below. These judgments have been passed by appreciating all the material on record and the judgments are neither cryptic nor it can be said that the ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP 16 conclusions arrived at are not borne out from the material placed on record by the prosecution. Thus, the revision sans merit and the same is dismissed.
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(Ajay Mohan Goel) Judge 19th October, 2016.
(Guleria) of rt ::: Downloaded on - 15/04/2017 21:23:58 :::HCHP