Himachal Pradesh High Court
Ramesh Chand vs Of on 3 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 145 of 2009
Reserved on: 15.07.2016
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Date of decision: 03.08.2016
Ramesh Chand ... Petitioner
Versus
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State of Himachal Pradesh ... Respondent
Coram : rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. N.K. Thakur, Senior Advocate with Ms.
Jamuna, Advocate.
For the respondent: Mr. V.S. Chauhan, Additional Advocate
General.
Ajay Mohan Goel, J.:
By way of the present writ petition, the petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Una, in Criminal Appeal No. 6 of 2008 dated 13.07.2009, vide which, learned Appellate Court has dismissed the appeal filed by the accused and upheld the judgment passed by the Court of learned Judicial Magistrate Ist Class, Court No. 1, Amb, in Criminal Case No. 85-I-2004 dated 20.03.2008, convicting the accused for commission of offences under Sections 279 and 304-A I.P.C. and sentencing him to undergo rigorous imprisonment for two years for 1 Whether reporters of Local Papers may be allowed to see the judgment? . ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 2 commission of offence under Section 304-A I.P.C. and to pay fine of Rs.5000/- and further to undergo simple imprisonment for six months for commission of offence under Section 279 I.P.C.
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2. The case of the prosecution was that FIR No. 31/2003 dated 17.02.2003 was registered on the information of Dinesh Kumar Lath (complainant) who telephonically informed the police about the occurrence of the accident, on receipt of which the police of went to the spot. The facts which subsequently emerged were to the effect that on 17.02.2003 accused was driving bus No. HP-19- rt 2144 which was on its way from Amb to Una and Ramesh Kumar PW-2 was the conductor of the bus. When the said bus reached near Dhussara, at around 6.40 P.M., had hit a scooter bearing registration No. HP-19-4387 which was on its way from Una towards Amb. The scooter was being driven by Tarlok Chand and his wife Rajinder Kaur was the pillion rider. The said accident took place due to rash and negligent driving of the accused, which resulted in multiple injuries of serious nature to both Tralok Chand and Rajinder Kaur, who were immediately taken to District Hospital but succumbed to their injuries. After completion of formalities at the spot which included recording of the statements of witnesses, preparation of spot map and taking photographs of the site of accident, both the bus and scooter alongwith the documents were impounded. The vehicles were got examined by a mechanic. After completion of the investigation, challan was filed in the Court and as a prima facie case was found against the accused, notice of ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 3 accusation was put to the accused for commission of offences punishable under Sections 279 and 304-A I.P.C., to which he pleaded not guilty and claimed trial.
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3. Learned trial Court on the basis of material placed on record by the prosecution held that the prosecution was able to establish the guilt of the accused and accordantly it convicted the accused for commission of offences under Sections 279 and 304-A of I.P.C.
4. Appeal filed by the accused against the said judgment rt of conviction was also dismissed by learned Appellate Court.
5. Feeling aggrieved by the said judgment, the accused has filed the present revision petition.
6. Mr. N.K. Thakur, learned Senior Advocate, has argued that the judgments passed by both learned Courts below are not sustainable in law because the findings of conviction recorded by learned trial Court and affirmed by learned Appellate Court were perverse as there was no material on record produced by the prosecution from which it could be inferred that the accident in issue took place because of the rash and negligent driving by the accused. According to Mr. Thakur, even the site plan which had been prepared by the prosecution made it apparently clear that the accident had not taken place on account of the rash and negligent driving of the accused. Thus, he argued that in this view of the matter, the findings returned by learned Courts below against the accused were perverse findings and he further submitted that ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 4 because both the judgments passed by learned Courts below were perverse, therefore, the same required interference under the revisional jurisdiction of this Court.
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7. Ms. Parul Negi, learned Deputy Advocate General, on the other hand argued that there was no merit in the present revision petition and learned Courts below had rightly come to the conclusion that the accused was guilty of the offence for which he of had been convicted. Ms. Parul Negi submitted that the prosecution had substantiated on the basis of material produced on record rt beyond reasonable doubt that the accident had taken place on account of the rash and negligent driving of the accused which resulted in loss of two precious lives. She further submitted that the petitioner was totally misconstruing the spot map because it was apparent from the spot map itself that it was the bus which was being driven on the wrong side which resulted in the unfortunate accident in which two persons were killed. Accordingly, she submitted that there was no perversity or infirmity with the findings returned by learned Courts below and the same required no interference in the present revision petition.
8. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by learned Courts below.
9. In order to prove its case, the prosecution examined 11 witnesses.
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10. Surinder Kumar entered the witness box as PW-1 and stated that on 17.02.2003 at around 6.40 P.M., bus bearing registration No. HP-19-2144 was proceeding towards Una and one .
scooter bearing registration No. HP-19-4387 was lying there. He further deposed that the police took into possession the documents of the bus vide Ext. PW1/A which bears his signatures. He further deposed that the accident had not occurred in his presence.
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11. The prosecution examined Ramesh Kumar, conductor of the bus involved in the accident as PW-2.
rt He stated that in between 6.30 - 6.45 P.M. when the bus reached near Dhussara, the same met with an accident with scooter. He further stated that he cannot say as to who was responsible for the said accident. He was declared as a hostile witness by the prosecution because he resiled from his earlier statement.
12. HC Sarup Lal entered the witness box as PW-3 and he stated that both the scooter and bus which were involved in the accident were got mechanically examined and no mechanical fault was found in the said vehicles.
13. PW-4 Deepak stated that he had taken the photographs of the spot.
14. PW-5 HHC Karnail Singh deposed to the effect that he had taken the photographs of the dead body.
15. PW-6 Vijay Pal stated that he operated STD booth in main Bazar Dhussara and on the fateful day, he was at his STD booth, a bus which was proceeding towards Amb side met with an ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 6 accident at some distance from his shop at a curve. Thereafter, he went to the spot and saw the victims who were in severe pain. He stated that both of them were unconscious. The victims were those .
who were scooter borne. Both the victims were taken to Una hospital in a truck, however, both of them died. In his cross- examination, he stated that the accident has not taken place in his presence and he cannot say as to how the accident took place.
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16. HC Agya Ram has entered the witness box as PW-7 and deposed that on the basis of statement of Dinesh Lath, FIR was rt lodged and thereafter, the police party departed for the spot.
17. PW-8 SI/SHO Jagjeet Singh has stated that on the fateful day after they received the news of accident, he alongwith police party reached the spot and thereafter he recorded the statement of the complainant under Section 154 Cr.P.C. which was sent to the Police Station for registration of the FIR. He also stated that the photographs of the spot were taken and the accused was also arrested. He also stated the mode and manner in which the investigation was carried out at the site of the accident. This witness has been subjected to extensive cross-examination. However, he emphatically denied the fact that the spot or that no photographs were taken of the spot.
18. Dinesh Lath entered the witness box as PW-9 and stated that on the fateful day in between 6.30 - 6.45 P.M., one bus was going from Amb towards Una side and a scooter was coming from Una side which met with an accident with the bus, as a ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 7 result of the same, one man and a lady who were riding on the said scooter were seriously injured and he reported the incident to the police. He also deposed that the accident had taken place on .
account of the rash driving of the bus in issue.
19. HC Chaman Lal has entered the witness box as PW-10, who is a formal witness.
20. Dr. Umesh Gautam entered the witness box as PW-11, of who has proved the factum of conducting the postmortem.
21. In the present case, the police machinery was put into rt action on the basis of the information provided by PW-9 Dinesh Lath.
22. A perusal of the statement recorded of PW-9 Dinesh Lath under Section 154 Cr.P.C. demonstrates that it is mentioned therein that on 17.02.2003 at around 6.40 P.M., said witness was present in Dussara Bazar when he heard a noise of accident caused on account of a bus hit. On hearing the said noise, he went towards Una side about 200 Mtrs. and saw that bus No. HP-19-2144 which was proceeding from Amb to Una hit scooter bearing registration No. HP-19-4387 which was on its way from Una to Amb. It is further recorded therein that the bus was being driven by Ramesh Chand and one man and a lady who were riding on the scooter suffered injuries. It was also stated therein that the scooter had been damaged completely and it was apparent that the accident had taken place on account of rash and negligent driving of the bus driver. It was also mentioned therein that the accident had ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 8 occurred as driver of the bus lost control over the bus, as a result of which, it hit the scooter.
23. Now, a perusal of the statement made by said witness .
as PW-9 demonstrates that there is consistency in his statement as was recorded under Section 154 Cr.P.C. and what he stated on oath in the Court. It is a matter of record that both the bus as well as scooter were got mechanically examined and the mechanical of report of the said two vehicles makes it clear that there was no mechanical defect in either of the vehicle. The spot map is rt on record as Ext. PW8/B. The bus admittedly was travelling from Amb to Una i.e. from north to south and the scooter was on its way from Una to Amb i.e. from south to north. Mark-F on the site map is the spot where the bus had hit the scooter. Mark-G is the spot where the scooter was lying after the accident in a damaged condition. The width of the road near Mark-F is stated to be 20 feet and near Mark-F it is stated to be around 24 feet. It is apparent from a perusal of the site plan that the bus was being driven on the wrong side, whereas the scooter was being driven on the correct side. Because the bus was being driven from Amb to Una and from north to south, there was no occasion for the bus to be at the spot Mark-F i.e. to the right side of the road leading from Amb to Una. Therefore, it is apparent that the bus was being driven in a rash and negligent manner on the wrong side which resulted in the accident in which two lives were lost. This fact stands duly corroborated by the statement of PW-9 whose testimony is both ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 9 reliable and trustworthy and whose credibility could not be impinged by the defence in the cross-examination.
24. Further, a perusal of the photographs of the accident .
site also clearly corroborated the case of the prosecution that the bus was being driven in a rash and negligent manner by the driver and that too on his wrong side. The factum of the bus being driven in rash and negligent manner is also evident from the of distance between spot Mark-F where the bus had hit the scooter and spot Mark-G till where the scooter was dragged by the bus.
rt Sarup Lal who entered the witness box as PW-3 and who had issued mechanical report in respect of both the bus and scooter, categorically stated that there was no mechanical defect in either of the two vehicles. PW-6 Vijay Pal also stated that though he was not an eye witness to the accident but he had reached the spot where the accident took place and found the injured in severe pain who were taken to the hospital in critical position where they died. PW-8 SI/SHO Jagjeet Singh recorded the statement of PW-9 under Section 154 Cr.P.C. and also registered the FIR. He categorically denied that the spot map was prepared by him at his own and same was not correct.
25. As I have already discussed above, though PW-9 has not actually seen the occurrence of the accident, however, he has clearly stated after he reached the spot that the cause of the accident was apparent from the scene of the accident to the effect that the same was a result of the bus driver loosing control of his ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 10 vehicle. Photographs of the spot also make it abundantly clear that scooter Ext. P-3 was hit with considerable force and which had also caused considerable damage.
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26. Perusal of the judgments passed by learned Courts below demonstrates that all the aspects of the matter has been taken into consideration by learned trial Court as well as by learned Appellate Court. After perusing the material on record placed by of the prosecution, learned trial Court held that the prosecution was able to prove its case against the accused beyond rt reasonable doubt. The findings of conviction so returned by learned trial Court has also been upheld by learned Appellate court and that too by passing a reasoned judgment. Learned Appellate Court has also taken into consideration all aspects of the matter and it has after due appreciation of the material placed on record by the prosecution as well as the findings returned by learned trial Court held that there was no infirmity in the judgment passed by learned trial Court.
27. In my considered view also, the material which has been placed by the prosecution on records proves beyond any reasonable doubt that the accident occurred due to rash and negligent driving of the accused/driver. It cannot be said that the prosecution was not able to nail the guilt of the accused. Statements of PW-8 and PW-9, site plan prepared at the spot by PW-8 and the photographs of the vehicles in issue as well as mechanical reports of the same point towards one conclusion only that the ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 11 unfortunate accident took place on account of the rash and negligent driving of the accused.
28. Learned counsel for the petitioner also relied upon the .
following judgments in support of his case:-
(i) Mahadeo Hari Lokre Vs. The State of Maharashtra, AIR 1972 Supreme Court 221,
(ii) Lachhi Ram Vs. State of H.P., Latest HLJ of 2003 (HP) 730, and
(iii) Udham Singh Vs. The State of Himachal Pradesh, 1980(9) ILR(HP) 213,1980 SLC rt 246.
29. In Mahadeo Hari Lokre Vs. The State of Maharashtra, AIR 1972 Supreme Court 221, the Hon'ble Supreme Court of India held that if a person suddenly crosses the road the bus driver, however, slowly he may be driving, may not be in a position to save the accident and, therefore, it will not be possible to hold that the bus driver was negligent. In my considered view, this judgment of the Hon'ble Supreme Court is of no assistance to the petitioner because it stands proved from the material placed on record by the prosecution in the present case that the accident had in fact resulted on account of the rash and negligent driving of the accused.
30. In Lachhi Ram Vs. State of H.P., Latest HLJ 2003 (HP) 730, this Court held as under:-
"Section 304-A I.P.C. is not meant to punish a person in a case where the killing of a human being ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 12 by him does not fall within the scope of Section 302 or 304 or any other penal provision but it is limited to such cases where the death has been caused by rash or negligent act and falls short of culpable .
homicide. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injuries and without the knowledge that injury will probably be caused. To incur criminal liability the act must be of done with rashness or indifference as to the consequences, criminal negligence is the gross and rt culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by the accused to avoid causing of injury to the public or an individual. In the absence of such criminal rashness or criminal negligence, accused cannot be convicted under section 304-A I.P.C."
31. In Udham Singh Vs. The State of Himachal Pradesh, 1980(9) ILR(HP) 213/1980 SLC 246, this Court had also held that merely because a person contravenes some rules and regulations he does not make himself liable for rashness or negligence. It was also held that to make a person liable for criminal negligence or rashness, it is necessary to show a nexus between the wrongful act of an accused and the injuries received by another. It was also held that the injuries must be the immediate result of the wrongful act and not a remote consequence.
32. When we apply the ratio laid down in these two judgments to the facts of this case, it is apparently clear that in the ::: Downloaded on - 15/04/2017 20:57:20 :::HCHP 13 present case, deceased suffered injuries on account of the accident which took place because of the rash and negligent driving of the accused. Therefore, there is no remoteness in the cause of injuries .
suffered by the deceased persons due to which they died. Therefore, in my considered view, the above two judgments are of no assistance to the petitioner.
33. Even otherwise, it is well settled law that the jurisdiction of of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot rt in absence of error on a point of law, re-appreciate evidence and reverse a finding of law.
34. It has been further held by the Hon'ble Supreme Court that the object of the revisional jurisdiction was to confer power 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 on the one hand, or on the other hand in some undeserved hardship to individuals.
35. The Hon'ble Supreme Court in Ram Briksh Singh and others Vs. Ambika Yadav and another, (2004) 7 Supreme Court Cases 665, has held that Revisional Court can interfere with the findings of lower court where the Courts below have overlooked material evidence.
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36. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice.
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However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case.
37. In view of what has been held by me above, it cannot be said that the judgments passed by learned Courts below are of either perverse or the findings returned by learned Courts below are not borne out from the material on record. Accordingly, while rt upholding the judgments passed by both learned Courts below, the present revision petition is dismissed being devoid of any merit.
(Ajay Mohan Goel),
August 03, 2016 Judge
(BSS)
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