Himachal Pradesh High Court
Roshan Lal vs State Of H.P on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 103 of 2012 Reserved on: 16-11-2019 & 22-11-2019 .
Date of Decision: January 3, 2020
Roshan Lal ...Petitioner.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? YES
For the petitioner: Mr. Sanjeev Bhushan, Sr. Advocate with Mr.
r Rajesh Kumar, and Ms. Abhilasha Kaundal,
Advocates.
For respondent: Mr. Ashok Sharma, Advocate General & Mr.
Nand Lal Thakur, Additional Advocate General.
Amicus Curiae: Mr. Karan Kanwar and Mr. Amir Mohammad,
Advocates.
Anoop Chitkara, Judge
Challenging the dismissal of an appeal by Sessions Court, upholding the conviction and sentence passed by Judicial Magistrate, Shimla, the convict charged for causing death of a pedestrian by driving his bus, in a rash and negligent manner, has come up before this Court by way of the criminal revision petition.
::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 22. The gist of the facts apposite to decide the present petition traces its origin to an FIR No. 55 of 2006, dated Mar 09, 2006, under Section 304-A and 279 of IPC in the file of Police Station, Sadar, Shimla, District-
.
Shimla, HP.
3. The police recorded the initial details in the Daily Diary Report No. 33, dated 09-03-2006 (Ext. PW-8/A), of Police Station- Sadar, Shimla, District- Shimla, HP. It reveals that HHC Ramesh No. 1074 (PW-13), gave telephonic information to the said Police Station that near Gurudwara at the Cart Road, Shimla, one vehicle had hit a person. The report further reveals that people had already taken the injured to Deendyal Upadhyay Zonal Hospital, (Ripon Hospital), Shimla, HP.
4. On the receipt of this information, the Investigating Officer HC Baldev Singh (PW-16) started an investigation. He recorded the statement of Ram Prakash (PW-1) under Section 154 of CrPC. Ram Prakash stated that he runs a Kirana shop (General Merchandise Store), where he also sells Biri and cigarettes. On Mar 9, 2006, at 4:00 PM, in the evening, when he was in his shop, then Sh. Chandu Ram injured/deceased, who was his regular customers of Biri and Cigarette and other Kirana items, came to his shop. Chandu Ram had demanded lentils (split Moong daal). He stated that when he was weighing the lentils, at that time, one bus bearing No. HP63-0592, of Aman Bus Travels, came from the side of the lift. The bus arrived at high speed. At that time, other vehicles were also passing from the opposite side. When the ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 3 said the bus was crossing in front of his shop, at that time, the bus crushed Chandu Ram and injured him severely. On hearing the shrieks of Chandu Ram, the driver stopped the bus and reversed it and, after that, took out the .
wounded to hospital, who had fallen in the drain.
5. Based on this information, the Police registered the FIR mentioned above, initially under Section 279 and 337 of IPC. The Investigating Officer prepared the spot map (Ext. PW-16/B). Later on, after the death of the injured, the Police inserted Section 304-A of IPC in the FIR. After that, on the instructions of the Police, the Registrar, Department of Forensic Medicine, Indira Gandhi Medical College, Shimla, conducted the postmortem examination of the deceased Chandu Lal. Vide report Ext. PW-5/ A doctor Sangeet K. Dhillon opined that the deceased died as a result of hemorrhagic shock due to antemortem blunt injury.
6. After completion of the investigation, the police filed a report under Section 173 (2) of the Code of Criminal Procedure, 1973, after now called CrPC. Vide order dated 3-1-2007, learned Judicial Magistrate, Court No.4, Shimla, HP, framed charges for the commission of offenses punishable under Sections 279 and 304-A of IPC to which the accused not pleaded guilty and claimed trial. Consequently, the Judicial Magistrate, Shimla, HP, initiated the prosecution against the petitioner. Vide judgment dated Apr 30, 2010, passed in Police challan No 66/2 of 2006, the trial Court convicted the accused of commission of offenses punishable under Sections 279 and 304-A ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 4 of IPC. The convict challenged the judgment of conviction by filing an appeal in the Court of Sessions, at Shimla. Vide judgment dated Apr 02, 2012, passed in Criminal Appeal No. 42-S/10 of 2010, Sessions Judge upheld the conviction .
and dismissed the appeal. Thus, the present petition.
7. At this stage, it would be appropriate to state that the offenses under Sections 279 and 304-A of IPC do not require framing of charges, but notice of accusation should have been put to the accused. The maximum sentence provided under Section 304-A of IPC is two years as well as under
Section 279 of IPC, a maximum penalty of six months can be imposed, being a summons case charges. Chapter XX of CrPC deals with summon cases, and Section 2 (x) defines warrant case, as a case relating to an offence punishable for death, imprisonment for life or imprisonment for a term exceeding two years. Therefore, the present case is not a warrant case. Section 2(w) defines a summons case as one which is not a warrant case. Be that as it may, it is a procedural defect, and neither make any difference nor cause prejudice to the accused.
8. After examination of all the prosecution witnesses, the Court recorded the statement of accused under Section 313 of CrPC, in which he stated that he is innocent and falsely implicated. However, the accused did not lead any evidence in his defence.
9. The trial Court, vide the judgment dated Apr 30, 2010, held the accused guilty of the commission of offenses punishable under Sections 279 ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 5 and 304-A of IPC. The Magistrate sentenced the convict to undergo simple imprisonment for one year for the commission of an offense under Section 304-A IPC, and fine of Rs. 10,000/- and further simple imprisonment for two .
months in default of payment of the fine; And simple imprisonment for six months and fine of Rs. 1,000/- for the commission of offenses under Section 279 of IPC and further imprisonment for fifteen days, in default of payment of fine.
10. The convict challenged that judgment of the Judicial Magistrate by filing a Criminal Appeal before the Sessions Judge, Shimla, and vide judgment dated Apr 2, 2012, passed in Criminal Appeal No. 42-S of 2010, learned Sessions Judge dismissed the appeal.
11. I have heard Mr. Sanjeev Bhushan, Senior Advocate, for the petitioner, Mr. Ashok Sharma, Advocate General for the State of Himachal Pradesh, ably assisted by Mr. Nand Lal Thakur, Additional Advocate General, and Mr. Karan Kanwar, Mr. Aamir Mohammad, Advocates, Amicus Curie. I express my gratitude to all of them for their able assistance.
ANALYSIS AND REASONING:
12. The Police received information about the accident through Ram Parkash, and based on his version; the Police recorded FIR. During the trial, Sh. Ram Prakash testified as PW-1 and reiterated his statement made under Section 154 of CrPC. In his examination-in-chief, he stated that the bus had come in a wrong manner, but it was slow. This statement would assume ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 6 significance in the light of the earlier statement of this statement recorded under Section 154 of CrPC, wherein he specifically mentioned that on hearing the shrieks of Chandu Ram, the bus driver immediately stopped the bus. Then .
he reversed the bus, paving the way for the rescue of the injured.
13. It means that the bus had stopped even before it had crossed the person after hitting it. On such a statement, the prosecution sought permission of the Court to put leading questions, and consequently, the Court declared this witness as a hostile witness. In the leading questions put to this witness, he explicitly denied that the bus was on high speed or was on the wrong lane/side. He clarified that the bus touched the injured, and due to that, he had fallen. He further stated that it was the driver and conductor of the bus who had carried him to the hospital.
14. The prosecution tried to introduce one Vir Singh as an eye witness, however, while testifying as PW-3 Vir Singh did not support the prosecution and denied that the accident took place in his presence. Even after the Court declared him hostile, he did not support the case of the prosecution.
15. The other witness examined by the prosecution to prove the accident is PW-4 Sh. Chanderesh Kumar, who testified that he was posted in the traffic wing of the Police, and discharging in traffic duty on the road, where the accident took place. However, he had reached the spot after the accident had taken place. Another prosecution witness is PW-7 Constable ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 7 Rakesh Kumar, who contradicted PW-4 Chanderesh Kumar, by stating that he had told him that traffic halted due to an accident.
16. Another reason to doubt the credibility of PW-4 Chanderesh .
Kumar is that he in his statement has stated that he had reached the spot on hearing the shrieks, and on reaching the place, he noticed that the bus had hit Chandu Ram by the front tyre. However, PW-1 Ram Prakash, contradicted this statement, who had explicitly stated that the side of the bus pressed the injured. The credibility of his testimony that the bus had hit injured from its front tyre stands contradicted by the history recorded in the postmortem report Ext. PW-8/A. In cross-examination, PW-4 Chandresh Kumar admitted that he was towards the driver's side at a distance of 20 feet away from the place of accident.
17. The accident had taken place from the left side of the bus, which is opposite of the driver's side, whereas this witness was on the right side. Now in between him and the injured, there was this bus that would have blocked his vision. Therefore, admittedly PW-4 was on the right side of the bus, whereas the accident took place on the other side; hence, he can't have an actual vision of the accident taking place. Undoubtedly, after the accident, he immediately reached there, rescued the injured, and sent him to the hospital. However, it would not mean that he had seen the accident taking place.
::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 818. Even otherwise, on noticing traffic Police, the drivers, especially the professional ones, drive more carefully, and more so, the drivers of the commercial vehicles.
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19. I have also seen the judgments of convictions passed by trial Court and Sessions Judge, Shimla. Both the learned Judges placed reliance upon the statement of HHG Chanderesh Kumar. However, none of the Court went further to analyze their statements. The appreciations of evidence in both the judgments are not correct, and both the Courts conducted the illegality by totally brushing aside the statements of both the witnesses i.e., PW-1 Ram Prakash and PW-3 Vir Singh.
20. Given above, the prosecution has failed to prove that the fault of the driver in the accident. There is no evidence that the convict was driving the bus in a rash or negligent manner. Consequently, the impugned judgments of conviction are set aside, and the Petitioner is acquitted of all offenses.
21. There is another crucial aspect of this matter. The question is that when the driver was not driving in a rash or negligent manner, then why did the accident take place at all? During the trial, and the first appeal, the Courts did not touch the aspect of blind spots. It was primarily due to the absence of such evidence proved or pleaded by the defense. Strangely, the defense lawyer moved like a tortoise, of the fable of the hare and the tortoise, believing that the hare will take a nap, paving the way for the ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 9 success of his sloth pace. Convictions led to rush of adrenal, leading to change of lawyer.
22. We get the answer if we start our journey from the invention .
of the vehicles. Earliest vehicles were struggling with so many mechanical defects, frequent break downs, failure of brakes, discharge of the battery, non-collapsible zones, and hardly any safety features. However, the glitter of innovation attracted the most beautiful brains to the industry, leading to significant innovations, resulting in the rectification of almost all the defects.
The vehicles of today are so advance that neither the brakes fail, not do they break down. The technology has converted the role of the driver to that of an operator. The modern vehicles are so advance and technology savvy that we no more drive a car, but operate it. The technology has made so much advancement that the accidents do not take place because of the faults of the vehicles, but they take place due to the lack of the capacity of the human to cope up with it. One such grey area is the blind spots, which human eyes cannot notice. The accidents will stop happening only when the vehicles will take all control from the man and rely upon the innovation of man, through Artificial Intelligence and Machine Learning, and would become self-driven.
The only way to stop road accidents is by taking out the man from the machines and let machines drive on their own.
23. Various studies show that the blind spots are those areas which driver of a vehicle cannot notice, either through the direct front view, ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 10 or through the rearview and side-view mirrors, and he has to turn his head of both sides to have a glimpse of the entire outside perspective, which depends upon the height of the vehicle and the size of window panes. Blind spots are .
also known as 'No Zones.' Collisions and accidents frequently occur in 'No Zones.' Blind spots form due to obstruction in the view caused by windshield pillar, cargo, headrests, improper side view and interior view mirrors, the height of the driver, the position of driver's seat, reflection, frost and fog formation, automobile designs, etc.
24. Mr. Karan Kanwar, Advocate, Amicus Curiae has cited one judgment passed by Sessions Court of Delhi, in Cr.A 67 of 2018, decided on 18.04.2018, wherein Miss Savita Rao, the then Sessions Judge, Delhi, states, "Many of the road accidents are caused on account of the blind spots for the driver in the immediate front and front sides of the bus. Therefore, improvements have been made over the years in the bus design, which include amongst other things, substantial lowering of the windscreens." I fully endorse this view.
25. The blog, "Blind Spot Accidents & Compensation lawsuits, www.gregmonforton.com, reads as follows, "In the Ontario province the Ministry of Transportation reported that at least 45 accidents in 2009 were caused by visual obscurity." It further reads, "Blind Spot Accident Prevention"-
It is crucial to note that blind spot accidents are preventable if a driver uses advanced methods for seeing around their vehicle. Some vehicle ::: Downloaded on - 16/02/2020 07:41:59 :::HCHP 11 manufacturers have begun to add technology that can notify drivers if they are veering to the left or right side and a vehicle is nearby."
26. The blog "Blind Spot Accidents in North Carolina" Riddle & .
Brantley, reads, "All vehicles still have blind spots, which can cause deadly car accidents If the driver is not alert and conscientious. Many drivers who cause crashes may claim they never saw the other car. If that car was in driver's blind spot, this may be true." Another blog states that the blind spots can catch even the most vigilant motorists off guard.
27. Another blog, "Blind Spots in Truck Accidents, Nov 4, 2019, reads as follows, "No matter how hard you try you can't see 10 feet in front of you, and the area directly on either side of you is a blind spot."
28. Mr. Karan Kanwar, Ld. Amicus Curiae, has drawn attention to a judgment passed by the Supreme Court of Belize, a Caribbean country located on the northeastern coast of Central America. In Action No. 447 of 1998, decided on Feb 2, 2000, the Court did not find the defendant culpable in respect of the negligence due to the large size of the blind spot with the vehicle in question.
29. Given above, the prosecution failed to discharge its burden to prove the culpability of the accused beyond reasonable doubt, and failed to discharge the initial burden. Consequently, the conviction is set-aside. Petition allowed.
(Anoop Chitkara)
Jan 3, 2020 (KS) Judge.
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