Himachal Pradesh High Court
________________________________________________ vs Nikku Ram on 13 July, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 113 of 2008 Reserved on : 30.06.2016 Decided on : 13.07.2016 ________________________________________________ State of Himachal Pradesh .....Appellant of Versus Nikku Ram ...Respondent ________________________________________________ Coram: rt The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?
reporting? No. For the Appellant : Mr. R.K. Sharma, Deputy Advocate General.
For the respondent: Ms. Anita, Advocate vice Mr. M.L. Sharma, Advocate.
___________________________________________________ Ajay Mohan Goel, Judge.
This appeal has been filed against judgment dated 05.11.2007, passed by the Judicial Magistrate 1st Class, Arki, District Solan, H.P. (hereinafter referred to as 'the learned trial Court'), in Criminal Case No. 48/2 of 2002, titled as State of Himachal Pradesh versus Nikku Ram, vide which the learned trial Court has acquitted the accused for the ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 2 commission of offences under Sections 279, 337 and .
304-A of the Indian Penal Code (hereinafter referred to as 'the impugned judgment').
2. In brief, the case of the prosecution was that on 26.09.2001, at about 4.30 p.m., the accused was of driving bus bearing registration No. HP-11-0511 from rt Arki to Shalaghat in a rash or negligent manner. When the said bus reached near Shyarda Bridge, the accused failed to negotiate the curve, as a result of which, the bus fell into the 'Khad', resulting in injuries to more than 52 persons and death of 4 persons. The accident was telephonically reported to the police by some unknown person, on the basis of which, Rapat Ext. PW-19/A was entered in the Rojnamcha by the police. Thereafter, the police visited the spot and recorded the statement of complainant Gobind Ram under Section 154 of the Code of Criminal Procedure and on the basis of the said statement, FIR Ext. PW-19/E was registered against the 2 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 3 accused for the commission of offences under Sections .
279, 337 and 304-A of the Indian Penal Code, for short 'IPC'.
3. It was further the case of the prosecution that during the course of the investigation, photographs of of the spot were clicked and the spot map was prepared.
rt The injured persons were taken to Civil Hospital, Arki, out of which, many were referred to Indira Gandhi Medical College, Shimla. The vehicle was got mechanically examined by the police. The postmortem of the dead bodies of the persons, who died in the said accident, was also got conducted.
4. After completion of the investigation, challan was presented in the learned trial Court and as a prima-facie case was found against the accused, Notice of Accusation for the commission of offences punishable under Sections 279, 337 & 304-A of the IPC was put to 3 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 4 him, to which the accused pleaded not guilty and .
claimed trial.
5. In order to prove its case, the prosecution has examined 24 witnesses in all.
6. The learned trial Court, on the basis of the of material produced on record by the prosecution, rt concluded that it was deposed by the material witnesses produced by the prosecution that when the accident took place, the bus was not being driven at a high speed and the steering of the bus got locked, which caused the accident.
7. The learned trial Court further held that even as per the prosecution, the bus left Arki for Shalaghat at about 4.15 p.m. and when it met with the accident at about 4.30 p.m., it had travelled only 1.5 kilometers, meaning thereby the bus took about 15 minutes to travel 1.5 kilometers. In other words, the bus was being driven at a speed of 6 kilometers per hour. As per the 4 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 5 learned trial Court, the accident could not be said to .
have been caused due to the rash driving of the accused.
8. The learned trial Court further held that PW-
12 Rattan Lal, who had mechanically examined the bus, of had stated that the vehicle in question fell down due to rt the mechanical defect. The said witness has also stated that there was no mistake of the driver in the said accident.
9. Keeping in view the said aspects of the matter, the learned trial Court concluded that in the instant case, the cause of accident was mechanical defect and accordingly, it acquitted the accused for the commission of the offences punishable under Sections 279, 337 and 304-A of the IPC.
10. Feeling aggrieved by the impugned judgment, the State has filed the present appeal.
5 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 611. Mr. R.K. Sharma, learned Deputy Advocate .
General strenuously argued that the impugned judgment is perverse and the findings returned by the learned trial Court are not borne out from the record of the case.
According to him, it stood proved from the deposition of of the prosecution witnesses that the accident had taken rt place due to the rash and negligent driving of the accused. He further argued that this very important aspect of the matter has been overlooked by the learned trial Court and the learned trial Court has erred in discarding the prosecution evidence and in not appreciating the statements of Gobind Ram (PW-1), Meena (PW-4), Sunita Kumari (PW-8), Sant Ram Sharma (PW-10) and Bhuvneshwar (PW-13) in the right perspective, who had fully corroborated the case of the prosecution. He also argued that the learned trial Court has acquitted the accused on conjectures and the findings returned by the learned trial Court are not borne 6 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 7 out from the record of the case. He thus prayed that the .
impugned judgment be set aside and the accused be convicted for the offences, for which he has been tried.
12. Ms. Anita, learned Counsel appearing for the respondent, on the other hand, argued that there is no of merit in the present appeal and there was no infirmity in rt the impugned judgment. She further argued that the findings returned by the learned Trial Court were duly borne out from the record of the case as the prosecution has miserably failed to establish that the unfortunate accident took place on account of the alleged rash and negligent driving by the accused. She also argued that it was clearly evident from the testimony of the prosecution witnesses that the vehicle in question was not being driven in a rash and negligent manner by the accused and the unfortunate accident took place because of mechanical failure. Accordingly, she prayed 7 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 8 that the appeal be dismissed and the impugned .
judgment be upheld.
13. I have heard the learned Counsel for the parties and gone through the record of the case as well as the impugned judgment.
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14. I will, first of all, refer to the statement of rt Rattan Lal (PW-12), who had mechanically examined the bus and whose deposition, in my considered view, is the most relevant. He has deposed in the learned trial Court that he serves as a Mechanic in the Himachal Pradesh Public Works Department. On 29.02.2002, he was asked by the police to mechanically examine the bus bearing registration No. HP-11-0511 and his Mechanical Report was exhibited as PW-12/A. In his cross-examination, he has deposed that the accident took place because of the mechanical defect and the same was not on account of the negligence of the driver.
8 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 9Perusal of Ext. PW-12/A demonstrates that it is .
mentioned therein as under:-
"(a) The bus fell down on account of the steering of the bus getting free, as a result of the driver's side front rod spring cycle pin of the same giving way;
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(b) The rod spring cycle pin was found to have come out earlier;
rt(c) The vehicle was in the second gear;
(d) At the spot, air pressure was found as zero;
(e) Brake system was found broken at the spot.
15. The testimony of the said witness and the mechanical report submitted by him, inspire confidence and seem to be trustworthy. Even otherwise, it has come on record that on the fateful day, the bus started its journey at about 4.15 p.m. and met with the accident at about 4.30 p.m. In this interregnum of 15 minutes, the bus had travelled only 1.5. kilometers.
9 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 1016. Keeping the aforesaid aspect of the matter .
in view, I am of the considered view that it cannot be said that the bus was being driven in a rash and negligent manner, especially when PW-12 has categorically stated that the accident had occurred on of account of mechanical failure and the driver was not rt responsible for the same.
17. Complainant, Gobind Ram has deposed as PW-1. He has stated that on 26.09.2001, he had boarded the ill-fated bus, which started from Arki at 4.15 p.m. and it was carrying about 50 passengers.
When the said bus reached near the bridge, it fell down.
It was being driven at the speed of 50-60 kilometers per hour by its driver. When the driver tried to steer the bus towards the right side, the bus swayed towards the left side. The driver could have applied the brakes, but he did not do so. In the said accident, many of the passengers suffered injuries and few of them died. He 10 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 11 has admitted the fact that the accident took place on .
account of the front rod spring of the bus giving way.
18. PW-4, Smt. Meena has stated that on 26.09.2001, she boarded Arki-Barmana bus bearing registration No. HP-11-0511. When the said bus of reached one curve behind the Shyarda Pull, it fell down, rt which was being driven rashly. She deposed that the accident took place because of the rash and negligent driving of the driver-accused. In her cross-examination, she has stated that the bus started from Arki at about 4.15 p.m. and the accident took place at about 4.30 p.m., and that the place where the accident took place, was one and a half kilometers from Arki and it took about 15 minutes for the bus to reach the spot of accident from Arki. She has admitted that the bus had stopped about 50 feet behind the spot of accident. She also admitted that she had filed a claim petition. She 11 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 12 further deposed that she cannot state as to what was .
the speed of the bus.
19. (PW-8) Sunita Kumari has deposed that the accident took place because of the negligence of the accused. In her cross-examination, she has stated that of the place where the accident took place, was one and a rt half kilometer from Arki. She has further admitted in her cross-examination that the accident took place because of the mechanical defect.
20. Sant Ram Sharma has entered into the witness box as PW-10. In his examination-in-chief, he has stated that when the bus reached at Shyarda Pull, all of a sudden, it fell down. He further has stated that the he cannot say as to on account of whose negligence, the accident took place. In his cross-examination, he has feigned ignorance to the fact that about 15 minutes might have taken for the bus to reach the place of 12 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 13 accident from Arki. He also deposed that the speed of .
the bus was normal.
21. Bhuvneshwar entered into the witness box as PW-13. He has deposed that the accident took place on account of the rash and negligent driving of the of accused. In his cross-examination, he has admitted that rt 15 minutes had elapsed, the bus having started its journey and the accident having taken place. He has further stated that there were about 60 passengers in the bus. He has also stated that he had filed a claim petition on account of the said accident and has received the compensation for the same. He has also stated that he had never asked the bus driver that he was driving the bus rashly.
22. I have discussed the testimony of PWs 1, 4, 8, 10 & 13, i.e. the witnesses, whose deposition according to the learned Deputy Advocate General, has not been appreciated in the right perspective by the 13 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 14 learned trial Court and further, whose deposition, as per .
the learned Advocate General, proves the case of the prosecution beyond any doubt that the accident took place on account of the rash and negligent driving of the accused.
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23. I am afraid that it cannot be inferred from rt the deposition of the said witnesses, as discussed above, that the accident had taken place on account of the rash and negligent driving of the accused. All these witnesses have unanimously stated that the place, where the accident took place, was about 1.5 kilometers from Arki, i.e. the place from where the bus started and it took about 15 minutes for the bus to cover the said distance of one and a half kilometer. It has also come on the record that the bus had, in fact, stopped about 50 feet before the site of the accident. It has further come on record in the deposition of PW-10 that the bus was not being driven by the driver in a rash manner. Further, 14 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 15 it has come in the deposition of PW-1 that the accident .
took place on account of the mechanical defect.
24. As already discussed above, it clearly stands established from the testimony of PW-12, who had mechanically examined the bus, that the bus had of developed mechanical defect on account of which, the rt said accident took place and that the accident could not be attributed to the accused. The prosecution has not been able to adduce any cogent material on record to disbelieve either the testimony of PW-12 or the report submitted by him. No cogent and trustworthy material has further been produced on the record by the prosecution, on the basis of which, it could be inferred that the accident took place due to the rash and negligent driving of the accused.
25. Therefore, in these circumstances, I am of the considered view that it cannot be said that the prosecution has proved beyond reasonable doubt that 15 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 16 the accident took place on account of the rash and .
negligent driving of the accused.
26. On the other hand, there is sufficient material on the record, on the basis of which, it can be inferred that the said accident took place due to the of mechanical defect, which had developed in the bus.
27. rtA perusal of the impugned judgment also demonstrates that all these aspects of the matter have been dealt with by the learned trial Court, in detail. In my considered view, it cannot be said that the findings, which have been returned by the learned trial Court, are perverse or that the same are not borne out from the record of the case. On the contrary, the reasoning of the learned trial Court is based on the material, which was produced on record by the prosecution and I uphold the findings, so returned by the learned trial Court that the accident was the result of mechanical failure, which had 16 ::: Downloaded on - 15/04/2017 20:48:01 :::HCHP 17 developed in the bus and the same was not on account .
of the rash and negligent driving by the accused.
28. Accordingly, the judgment passed by the learned trial Court is upheld and the present appeal, being merit less, is ordered to be dismissed.
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July 13, 2016
(hemlata)
rt (Ajay Mohan Goel)
Judge
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