Himachal Pradesh High Court
Date Of Decision: 03.10.2024 vs State Of Himachal Pradesh on 3 October, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:9886
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.589 of 2023
Date of Decision: 03.10.2024
_____________________________________________________________________
Bodh Raj .........Petitioner
Versus
State of Himachal Pradesh .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Vivek Chandel, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. B.C. Verma and Mr.
Vishal Panwar, Additional Advocates General,
with Mr. Ravi Chauhan, Deputy Advocate
General, for respondent/State.
_____________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397(1) read with Section 401 Cr.P.C. lays challenge to judgment dated 07.06.2023 passed by learned Additional Sessions Judge (1), Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.2-S/10 of 2023, titled "Bodh Raj Vs. State of Himachal Pradesh", affirming judgment of conviction dated 15.11.2022 and order of sentence dated 24.11.2022 passed by learned Judicial Magistrate First Class, Court No.8, Shimla, Himachal Pradesh in case No.106-II of 2021 titled "State of H.P. Vs. Bodh Raj", whereby Court concerned while holding petitioner (hereinafter, 'accused') guilty of his having committed 2024:HHC:9886 2 offence punishable under Section 279, 337 & 338, convicted and sentenced him, as per description given herein below:
Offence Simple Fine Imprisonment in default of under imprisonment payment of fine Section 279 IPC Nil ₹1000/- 7 days of simple imprisonment 337 IPC Nil ₹500/- 7 days of simple imprisonment 338 IPC Nil ₹1000/- 7 days of simple imprisonment
2. Precisely, the facts of the case, as emerge from the record are that two vehicles i.e. tipper bearing registration No.HP-17B-6530 driven by one Suresh Kumar and truck bearing No.HP-64-5688 driven by accused-Bodh Raj collided with each other on 07.08.2016 near Basantpur Petrol Pump, District Shimla. Police after having received information with regard to accident, reached on the spot and recorded the statement of person namely Naveen Kumar (PW9) under Section 154 Cr.P.C., who alleged that on 07.08.2016 at about 08:45 in the morning, while he was having food inside his workshop, he heard a loud noise on the road. He deposed that when he came outside from his workshop, he found that tipper bearing registration No.HP-17B- 6530 had collided with truck bearing No.HP-64-5688 at about 50 meters from his workshop. He deposed that driver of the tipper Suresh Kumar was badly trapped in-between the steering and his seat and he was seriously injured. He deposed that while he rescued driver Suresh 2024:HHC:9886 3 Kumar, many other persons gathered around the vehicle. He also deposed that some persons sitting in the tipper were also injured and they were taken to CHC Sunni in an ambulance. As per complainant, tipper bearing registration No.HP-17B-6530 was coming from Budmain and was going towards Sunni, whereas truck bearing No.HP- 64-5688 was coming from Sunni to Shimla. The driver of the truck, as detailed hereinabove, fled away from the spot, however, he was subsequently identified as Bodh Raj i.e. petitioner herein. Since circumstances on the spot revealed that accident occurred due to rash and negligent act of the truck driver, Police after having conducted investigation on the spot, registered FIR against him. Since injury suffered by driver of the tipper namely Suresh Kumar was found to be grievous in nature, an offence under Section 338 of IPC was incorporated in the FIR, whereas other injured were discharged after medical treatment was given to them at CHC Sunni. After obtaining final opinion from the Medical Officer, Challan under Section 279, 337 and 338 of IPC and Section 187 of Motor Vehicles Act came to be presented in the competent Court of law against the accused.
3. Learned trial Court being fully convinced that prima facie case exists against above named accused, proceeded to frame notice of accusation under Sections 279, 337 & 338 of IPC and Section 187 of Motor Vehicles Act, to which he pleaded not guilty and claimed trial. Prosecution with a view to prove its case, examined as many as 23 2024:HHC:9886 4 witnesses, whereas despite opportunity, accused failed to lead any evidence in his defence, however, in his statement recorded under Section 313 Cr.P.C., accused did not deny factum of accident, but specifically disputed factum with regard to his negligence. Learned trial Court on the basis of evidence as well as other material adduced on record by the prosecution, held accused guilty and accordingly convicted and sentenced him, as per description given hereinabove.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an appeal in the Court of learned Additional Sessions Judge (1), Shimla, but same also came to be dismissed vide impugned judgment.
5. In the aforesaid background, accused has approached this Court in the instant criminal revision petition, praying therein for his acquittal after setting aside the judgments of conviction and order of sentence recorded by Courts below.
6. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Vivek Chandel, learned counsel representing the petitioner is that both the Courts below failed to appreciate the evidence in its right perspective, as a result thereof, findings to the detriment of the accused, who is otherwise innocent, have come to the fore.
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7. Mr. Chandel vehemently argued that despite there being evidence available on record that person namely Suresh Kumar, who at relevant point of time was driving the tipper, was not competent to drive the vehicle as he did not possess valid and effective licence, Courts below without there being any cogent and convincing evidence, proceeded to hold accused guilty of his having committed offence punishable under Section 279, 337 and 338 of IPC. He submitted that in the case at hand, there is no eye-witness to the accident, but Court below merely on the basis of spot map and photographs adduced on record by the prosecution proceeded to hold accused guilty of his having committed offence punishable under Section 279, 337 and 338 of IPC. Lastly, Mr. Chandel argued that none of the prosecution witnesses has stated anything specific with regard to rash and negligent driving, if any, by the accused and as such, mere statement that vehicle was being driven in a high speed cannot be said to be sufficient to hold accused guilty of his having committed offence punishable under Section 279, 337 and 338 of IPC.
8. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General supported the impugned judgment of conviction recorded by learned Courts below. He submitted that there is very little scope left for interference on account of concurrent findings on facts and law recorded by learned Courts below, especially when this Court is exercising revisional jurisdiction. While making this Court 2024:HHC:9886 6 peruse evidence adduced on record, Mr. Kahol, while admitting factum that PW10-Suresh Kumar was not the driver of the vehicle, vehemently argued that there is no evidence, worth credence available on record that above named Suresh Kumar (PW10) was not having valid and effective driving licence, but there is overwhelming evidence available on record, suggestive of the fact that accident occurred on account of rash and negligent driving of the accused, who after accident, succeeded in fleeing from the spot. He further submitted that spot map (Ex.P-2/PW-23) as well as photographs (Ex.PY1 to Ex.PY4) adduced on record clearly prove the case of the prosecution that accident in question occurred on account of rash and negligent driving of the accused, as such, there is no scope left for interference and the petition having been filed by the petitioner/accused deserves outright rejection.
9. Having heard learned counsel for the parties and perused material available on record, this Court at first instance deems it fit to deal with the question of maintainability raised by learned Additional Advocate General.
10. The Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the 2024:HHC:9886 7 abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
11. In the instant case, after having perused evidence adduced on record, vis-a-vis reasoning assigned in the impugned judgments passed by Courts below, this Court is persuaded to agree with Mr. Vivek Chandel, learned counsel representing the petitioner that Courts below failed to appreciate the evidence in its right perspective.
12. Interestingly, in the case at hand, both the Courts below failed to take note of material fact that person namely Suresh Kumar (PW10), who at relevant point of time was driving the tipper was not 2024:HHC:9886 8 the driver, rather he was employed as a Cleaner. As per statement of aforesaid witness, name of the driver was Anil Kumar (PW7). If the statement of PW7 is perused in its entirety, he himself admitted factum with regard to his having been employed as a driver of the truck in question. He has also admitted that on the date of alleged incident, he was not driving the vehicle, rather, it was being driven by PW10-Suresh Kumar. Investigating Officer-SI Suresh Kumar (PW23) despite his having come to know factum with regard to deployment of PW10-Suresh Kumar as helper in the offending vehicle, failed to verify whether afore person possessed valid and effective driving licence to drive the vehicle in question on the relevant date or not? Though there is omission on the part of the Investigating Agency to adduce on record valid and effective driving licence, if any, by the PW10-Suresh Kumar, but once aforesaid witness himself admitted to be the cleaner of truck, coupled with the fact that he nowhere stated that he possessed valid and effective driving licence, Courts below ought to have taken note of aforesaid important fact, especially to conclude negligence, if any, on the part of the PW10-Suresh Kumar.
13. In the case at hand, none of the witnesses had an occasion to see the accident with their eyes. PW9-Naveen Kumar, at whose behest FIR sought to be quashed came to be lodged against the accused, reached the spot after having heard noise of collision. He nowhere stated that on the date of alleged incident, truck bearing 2024:HHC:9886 9 No.HP-64-5688 was being driven rashly and negligently by the petitioner/accused, rather, he stated that when he reached on the spot, driver of the truck had fled and he rescued driver of the tipper. None of the persons, who at relevant time were traveling in the tipper, specifically stated anything with regard to rash and negligent act of the driver of the offending truck.
14. There is another adverse circumstance against the driver of the truck that tipper in question was a goods vehicle, wherein only goods could be transported, but as per the case of prosecution, at the time of alleged accident, number of labourers were travelling in the tipper, who also suffered injury on account of collision.
15. Both the Courts below proceeded to hold accused guilty of offence punishable under Section 279, 337 and 338 of IPC, on the basis of spot map (Ex.P-2/PW-23) as well as photographs (Ex.PY1 to Ex.PY-4), adduced on record by the prosecution. After having perused spot map (Ex.P-2/PW-23), this Court is not persuaded to agree with Mr. Rajan Kahol, learned Additional Advocate General that accident occurred on account of rash and negligent driving of the truck by the petitioner. Bare perusal of spot map (Ex.P-2/PW-23) reveals that at the time of accident, truck in question was going from Sunni to Shimla, whereas tipper was going from Budmain to Sunni and if position of truck is seen, it cannot be said to be on the wrong side, rather at the relevant time, it is seen lying on the middle of the road.
2024:HHC:9886 10 Since there is slight curve on the road, both the vehicles which were coming from opposite side failed to measure the curve, as a result thereof, they collided with each other. No doubt, after alleged incident, petitioner/accused fled from the spot, but that cannot be an adverse circumstance against him for the reason that admittedly PW10-Suresh Kumar, who suffered injury in the accident, was not authorized/competent to drive the tipper and he was driving the tipper unauthorizedly without there being valid and effective driving licence. Though Courts below while ignoring aforesaid important aspect of the matter concluded that though there is no licence, if any, of PW10- Suresh Kumar adduced on record, but since rashness and negligence, on the part of petitioner/accused can be presumed on the basis of totality of evidence, it cannot be said that PW10-Suresh Kumar was not having valid and effective driving licence, however, this Court is not impressed with the aforesaid findings returned by both the Courts below being contrary to the record.
16. Omission, if any, on the part of the prosecution to adduce on record driving licence of PW10-Suresh Kumar ought to have persuaded both the Courts below to conclude that driver of the tipper was not having valid and effective driving licence, especially when he himself admitted that he was not the driver of the vehicle, rather, he was a cleaner and actual driver of the tipper was PW7-Anil Kumar. Leaving everything aside, none of prosecution witnesses stated 2024:HHC:9886 11 anything specific with regard to rash and negligent driving by the accused. In the case at hand, prosecution has not been able to prove beyond reasonable doubt that offending vehicle was being driven rashly and negligently by the accused at the time of alleged accident.
17. Reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:-
"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 accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and 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 roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the 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 public 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 a 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 negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 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."
2024:HHC:9886 12
18. The Hon'ble Apex Court in case titled "State of Karnataka v. Satish,"1998 (8) SCC 493, has also observed as under:-
"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.
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.
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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.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed."
19. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, 2024:HHC:9886 14 rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur.
20. By now, it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses, thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-
2024:HHC:9886 15 "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency.
Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686:
2008(11) SCR 286 has held:-( SCC p.704, para 14) " 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses."
21. Reliance is also placed upon the judgment passed by the Co-ordinate Bench of this Court in case State of H.P and ors versus Parmjit Singh, latest HLJ 2012(HP) 297 to substantiate that speed is not the sole criteria to prove the rash and negligent driving. The relevant para Nos.14 and 15 of the judgment is reproduced as under:-
"14. It is a settled law that the speed is not a criterion to prove the rash or negligent act of driving. The prosecution, as already stated above is obliged to prove the necessary ingredients of the offence by direct or circumstantial evidence. To fasten the criminal liability for the offences charged, there should be consistent, convincing and reliable evidence. Even in the exceptional cases, where the rule of res ipsa laquitar applies, it cannot be taken for guaranteed that the driver of the vehicle involved in the accident is guilty of offence. In the same situation, there 2024:HHC:9886 16 could be civil liability as well, in addition to the criminal liability, but so far as the criminal liability, it has to be proved beyond reasonable doubt and civil liability can be proved by preponderance of probabilities.
15. On the strength of the aforesaid evidence, it is very difficult to conclude that the accused was driving the vehicle rashly or negligently, more specifically when it has also come in the evidence that the deceased came in contact with the offending vehicle while crossing the road. Therefore, in my considered opinion, the offences punishable under Sections 279 and 304-A of the Indian Pendal Code against the accused are not made out."
22. 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 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."
23. There cannot be any quarrel, whatsoever, with regard to the 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 2024:HHC:9886 17 careful perusal of evidence adduced on record by the prosecution, nowhere suggests that the prosecution was able to prove beyond reasonable doubt that truck was being driven by the accused in rash and negligent manner at the time of alleged accident that too under the influence of liquor.
24. In view of the aforesaid discussions, judgment dated 07.06.2023 passed by learned Additional Sessions Judge (1), Shimla, District Shimla, Himachal Pradesh, in Criminal Appeal No.2-S/10 of 2023, titled "Bodh Raj Vs. State of Himachal Pradesh" and judgment of conviction dated 15.11.2022 and order of sentence dated 24.11.2022 passed by learned Judicial Magistrate First Class, Court No.8, Shimla, Himachal Pradesh in case No.106-II of 2021 titled "State of H.P. Vs. Bodh Raj", are quashed and set aside. The petitioner is acquitted of the charges framed against him. His bail bonds are discharged. The fine amount, if any, deposited by the petitioner be refunded to him, as per law.
The present criminal revision petition stands disposed of, along with pending applications, if any.
October 03, 2024 (Sandeep Sharma),
Rajeev Raturi Judge
Digitally signed by VIKRANT CHANDEL
Date: 2024.10.18 10:04:06 IST