Himachal Pradesh High Court
Rakesh Kumar vs State Of Himachal Pradesh on 18 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 134 of 2011 .
Reserved on: 11.12. 2017.
Date of decision: 18.12.2017
Rakesh Kumar ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. N.K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate.
For the Respondent : Mr. J.S. Guleria, Asstt. A.G. Justice Tarlok Singh Chauhan, Judge The present revision petition under Sections 397 and 401 of the Code of Criminal Procedure (for short the 'Code') is directed against the judgment passed by learned Sessions Judge, Una, on 13.12.2010 in Criminal Appeal No. 38 of 2009 whereby he dismissed the appeal filed by the petitioner and affirmed the judgment of conviction and sentence passed by learned Judicial Magistrate Ist Class, Court No. 1, Una, Amb, District Una, on 20.11.2009, in Police Challan No. 73-II-2006, whereby the petitioner was convicted and Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 2sentenced to pay a fine of Rs.1,000/- under Section 279 IPC and in default of payment of fine to further undergo simple imprisonment .
for two months and six months rigorous imprisonment under Section 304-A IPC.
2. The prosecution story, in brief, is that on 30.08.2006 a telephonic information was received from Medical Officer, Primary Health Centre (for short 'M.O., P.H.C.'), Amb to the effect that a person who had sustained injuries in road accident was lying in the hospital. Thereafter, DDR No. 12 in this regard was recorded on 12:30 p.m. and ASI Parkash Chand alongwith other police officials proceeded to the hospital. A request was moved before M.O., P.H.C., Amb for recording statement of injured, however, doctor opined that the injured was unfit to give statement. Thereafter, statement of Smt. Rajni Devi was recorded under Section 154 Cr.P.C., wherein she stated that she was resident of Kuthiari and on 30.08.2006 was travelling with her sister-in-law Nirmla Devi in Bus No. HP-19B-7514 as they were to visit a private doctor at Amb because of the illness of the child of Nirmla Devi. Nirmla Devi was sitting near front window and while she was deboarding the bus, the driver i.e. petitioner herein suddenly drove the bus, as a result whereof Nirmla Devi fell down on the road and sustained injuries on the head or other parts of the body. Thereafter, with the help of the local ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 3 people Nirmla Devi was brought to PHC, Amb. It was alleged that the accident had occurred solely on account of the rash and .
negligent driving of the bus driver and on the basis of such information FIR was registered and further investigation were thereafter carried out. Spot map was prepared and statements of witnesses were recorded. MLC of Nirmla Devi was obtained and she, in turn, then referred to Regional Hospital, Una, however, she succumbed to her injuries. Post-mortem was conducted on the body of the deceased and inquest form was filled-in. The bus was subjected to mechanical examination and in the examination so conducted, no mechanical defect was found. The photographs of the bus were taken and after completion of the investigation, finding a prima facie case against the accused challan was prepared and presented in the Court of learned trial Magistrate on 28.09.2006.
3. Taking cognizance on the challan, presence of the accused was procured and after admitting him on bail, copy of challan in compliance of Section 207 Cr.P.C. was supplied to him.
4. Substance of accusation was put to the petitioner/accused on 02.03.2007 under Section 279, 304A IPC to which the accused pleaded not guilty and claimed trial.
::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 45. In order to prove its case, prosecution examined as many as 16 witnesses and closed its evidence.
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6. The petitioner/accused was examined under Section 313 Cr.P.C. and he chose not to lead any evidence in his defence.
Learned trial Court after evaluating the prosecution evidence, convicted the accused/petitioner, as aforesaid.
7. The petitioner filed an appeal before the learned Sessions Judge, Una, however, the same was also dismissed vide judgment dated 13.12.2010.
8. It is in this background, the petitioner has now filed the present revision petition under Sections 397 and 401 of the Code with the prayer to quash and set aside the impugned judgment of conviction and sentence, with the further prayer to acquit the petitioner of all the charges.
9. It is vehemently contended by Mr. N.K. Thakur, learned Senior Advocate duly assisted by Mr. Divya Raj Singh, Advocate that the conviction against the petitioner is not at all sustainable as the same is based on the sole testimony of Smt. Rajni Devi, who is an interested witness as she admittedly is the sister-in-law of the deceased.
10. Whereas, Mr. J.S. Guleria, learned Asstt. A.G. would support the judgment rendered by both the Courts below urging ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 5 that the same being based upon the correct appreciation of evidence calls for no interference and, therefore, the petition be .
dismissed.
I have heard learned counsel for the parties and have gone through the records of the case.
11. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioners have been convicted and sentenced by examining the material placed on record with a view to ascertain that the judgments so rendered by the learned Courts below are not perverse and are based on the correct appreciation of evidence on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 6 13.9.2017, wherein the scope of criminal revision has been delineated in the following manner:-
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"In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon'ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".
In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon'ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".
In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon'ble Supreme Court in the following terms:
"It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 7 directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the .
appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope."
In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon'ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.
In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon'ble Supreme Court held as under:
"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint."
In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice".
In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Supreme Court held as under:
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 8 any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an .
Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon'ble Supreme Court held as under:
"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without r indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non- speaking judgment."
12. Having set out the legal parameters for exercise of revisional jurisdiction, it cannot be denied that in case findings recorded by the learned Courts below are perverse then obviously this Court would be entitled to interfere with the findings so recorded.
13. Adverting to the facts, it would be noticed that the petitioner has been convicted mainly on the basis of statement of Smt. Rajni Devi, who, admittedly is the sister-in-law of the deceased and, therefore, her evidence will have to be carefully scrutinized ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 9 and appreciated before any conclusion is made to rest on it, regarding the petitioner.
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14. At this stage, it shall be apposite to refer to a recent judgment of the Hon'ble Supreme Court in Yogesh Singh vs. Mahabeer Singh & others, AIR (2016) 5160, wherein the law on the subject has been succinctly laid down in the following manners:-
"Testimony of Interested/Inimical Witnesses
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held as follows:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, this Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 10".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule .
that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot r be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 11 Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
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15. Now, adverting to the statement of Smt. Rajni Devi, it would be noticed that she appeared in witness box as PW3 and stated that deceased Nirmla Devi was her sister-in-law. On 30.08.2006, she alongwith the deceased had come to Amb to see a private doctor and get medicines as the child of the deceased was not well. On their return, they boarded bus No. HP-19B-7514 from Amb bus stand. At about 12 noon when the bus was near Kuthiari, the conductor asked the passengers of Kuthiari to stand near the door. As soon as driver applied brakes Nirmla Devi tried to alight from the bus but the driver accelerated the speed, as a result whereof Nirmla Devi fell down on the road and sustained injuries on head and other parts of the body. She was brought to Amb hospital and later succumbed to her injuries. She stated that the accident occurred due to rash and negligent driving of the bus driver i.e. petitioner.
16. Adverting to the cross-examination, she admitted that there were 60-70 passengers in the bus. She further stated that the distance between Amb and Kuthiari is about 5-6 kilometers and it took about 20-25 minutes to reach there. She admitted that bus had stopped at various bus stations between Amb and Kuthiari. She further admitted that the conductor stopped the bus by blowing ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 12 whistle. However, she voluntarily stated that when the bus was approaching Kuthiari, conductor had asked the passengers, who .
were to deboard at Kuthiari, to stand near the door. She initially stated that Nirmla Devi fell down on the road at Kuthiari bus stand and then voluntarily stated that she fell at a little distance from Kuthiari at about 10 meters short of the bus stand Kuthiari. She stated that Nirmla Devi fell on the untarred portion of the road. She stated that there were 4-5 shops on the spot and around 20-25 persons had gathered there. Curiously, this witness then stated that her statement was recorded by the police at her home and the site map had not been prepared in her presence nor had the police visited the spot in her presence. She denied that due to rush in the bus she alongwith her sister-in-law were standing and voluntarily stated that they were sitting in the bus. She further denied that Nirmla Devi fell down from the stationary bus as she was sick. Lastly, she denied that a false case had been registered against the petitioner with a view to get compensation. Even though she admitted that the husband of the deceased had filed a case for compensation.
17. At this stage, it would be necessary to refer to the testimony of PW4 Manohar Lal, who was running a shop at Kuthiari in the name of New Sunny Tent House. He stated that he was sitting ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 13 in his shop when one lady fell down from the bus. He helped her and laid her on the bench. The number of the bus was HP-19B-7514 .
and was plying on Amb to Una route. He had asked the bus driver to take the injured to the hospital. The lady had sustained many injuries on her body and further stated that many persons had gathered on the spot. However, he is not in a position to state how the accident had occurred and rather feigned ignorance qua the same. Nothing material could be elicited from his cross-examination wherein he stated that his shop was at a distance of 50 r meters from the Kuthiari bus stand and the accident occurred in front of his shop. He further stated that bus is generally stopped at Kuthiari bus stand.
18. PW5 Sanjit Kumar did not support the prosecution story and was, thus, declared hostile. On being cross-examined by the prosecution, he denied that he was standing at Kuthiari bus stand on 30.08.2006 and further denied that the accident had taken place in his presence. In fact, he denied the entire story of the accident but admitted that Nirmla Devi sustained injuries on account of fall and further admitted that she was brought to P.H.C., Amb in the same bus and thereafter referred to Zonal Hospital, Una where she was declared dead. He feigned ignorance about the accident having occurred due to rash and negligent driving of the ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 14 petitioner. He even disowned portion A to A and B to B of statement Mark-S recorded by the police.
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19. Mr. Naresh Chand appeared as PW 3 and stated that one lady fell down from Lohia bus and he alongwith other had brought her to P.H.C., Amb in the same bus. In his cross-
examination, he stated that the spot was around 30-40 meters from the bus stand Kuthiari. He reached the spot after 5-7 minutes on hearing noise. Around 8-10 persons were already standing on the spot and he had not witnessed the lady falling from the bus and had no knowledge as to how the accident had occurred.
20. PW5 Sunil Kumar, Photographer proved on record photographs Ex.PW7/A and Ex.PW7/B alongwith negatives Ex.W7/C and Ext.PW7/D. Mr. Kuldip Kumar another photographer, appeared as PW10 and proved on record photographs Ex.PW10/A and PW10/B which he had taken on 01.09.2006 and further proved the negatives Ex.PW10/C and Ex.PW10/D.
21. Mr. Sarup Lal, who is the mechanic and examined the bus appeared as PW12/A.
22. HC Pawan Kumar appeared as PW14 and proved DDR No. 14 Ex.PW14/A.
23. ASI Parkash Chand, who investigated the case appeared as PW15 and deposed at length with regard to his role in ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 15 the investigation of the FIR. In his cross-examination he stated that a telephonic call from M.O., Amb was received at the police station .
at about 12:30 p.m. and he reached the hospital at about 12:40 p.m. It took 1-1/2 hours at hospital. There around 3-4 persons had accompanied Nirmla Devi. The statements of Naresh, Sanjeev and Rajni were recorded at the spot. Rajni was present on the spot when the site plan was prepared. He never visited Rajni at her house. He admitted that there were 2-3 shops on the spot and the distance of the shop from the spot was just 2 meters. He denied that he had recorded false statements of the witnesses.
24. ASI Avtar Singh appeared as PW16 and deposed about his part of the role in the investigation of the FIR. In his cross-
examination, he denied that he had recorded false statements of witnesses and conducted false investigation.
25. The testimony of the other witnesses is not at all necessary for the adjudication of this case.
26. It would be noticed that even though both the learned Courts below have referred to the statements of the witnesses but none of them have noticed the improbabilities and the major contradictions in the prosecution case.
27. As per Rajni Devi, who is the star witness of this case, stated that her statement was recorded by the police at her home ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 16 and no other document including the site plan was prepared on the spot. Whereas, the Investigating Officer ASI Parkash Chand .
while appearing as PW15 is categoric and specific to the effect that the statements of Naresh, Sanjeev and Rajni were recorded at the spot. In addition, the matter does not end here because this witness specifically deposed that he never visited Rajni at her house.
28. That apart, admittedly it was only Rajni Devi who was alleged to be accompanying the deceased, therefore, it would be highly improbable that Rajni Devi would simply go to her house leaving the injured Nirmla Devi, who is none else than her sister-in-
law, to die at the spot.
29. The prosecution story is inherently improbable and does cast serious doubt about Rajni Devi accompanying the deceased and being at the spot at the time of accident. What further tends to make the prosecution story highly improbably is the fact that even after Nirmla Devi had been taken to P.H.C., Amb and thereafter referred to Regional Hospital, Una, none of the family members including Rajni Devi had thereafter visited the hospital to know about her well being.
30. As already observed above, the presence of Rajni Devi on the spot becomes highly doubtful or else no sane person in the ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 17 given would leave the victim to die especially when she happens to be her sister-in-law.
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31. That apart, the prosecution has failed to even name the doctor, much less examined him, where Nirmla Devi alongwith Rajni Devi (PW3) had visited on the fateful day. After all, he was the witness who could have deposed about this fact. The absence of Rajni Devi on the spot lends credence to the plea of the defence that a false case has been fastened upon the petitioner only to grab compensation because it has specifically come on record in the cross-examination of Rajni Devi that husband of the deceased had already filed a compensation case.
32. On the basis of the evidence discussed above, the presence of Rajni Devi (PW3) on the spot becomes highly doubtful and thereafter the story of the prosecution becomes highly improbable, when Rajni Devi after the alleged accident, without informing anyone goes to her house and takes no further action to inform her family members and also the family members of the deceased being sister-in-law and none of them even visited the hospital to know the well being of Nirmla Devi.
33. The entire story put-forth by the prosecution appears to be concocted with the sole intention of grabbing compensation for ::: Downloaded on - 18/12/2017 23:07:42 :::HCHP 18 which petition already stood filed at the time when the prosecution was leading its evidence.
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34. The findings rendered by the learned Courts below are manifestly perverse and, therefore, cannot withstand judicial scrutiny.
35. Accordingly, I find merit in the revision petitions and the same is allowed and the judgment of conviction and sentence passed by the learned trial Magistrate as also upheld by the learned Sessions Judge is set aside. The petitioner is acquitted from all the charges. Bail bonds, if any, furnished by the petitioner are discharged.
December 18, 2017 (Tarlok Singh Chauhan)
(Sanjeev) Judge
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