Himachal Pradesh High Court
______________________________________________________________________ vs State Of Himachal Pradesh on 11 November, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. R. No.: 281 of 2015 .
Reserved on: 10.11.2016
Date of Decision: 11.11.2016
______________________________________________________________________ Ravi Kumar .....Petitioner.
Vs. State of Himachal Pradesh of .....Respondent.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge rt Whether approved for reporting?1 No. For the petitioner: Mr. Vikas Rathore, Advocate.
For the respondent: Mr. Vikram Thakur and Ms. Parul Negi, Deputy Advocate Generals.
Ajay Mohan Goel, Judge :
By way of this revision, the petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge-III, Kangra at Dharamshala in Criminal RBT Appeal No. 21-P/X/13/08, dated 30.05.2015, vide which learned appellate Court while dismissing the appeal filed by the present petitioner, has upheld the judgment passed by the Court of learned Judicial Magistrate, 1st Class (1), Palampur in Criminal Case No. 152-II/2005 on 02.07.2008, whereby the learned trial Court convicted the petitioner/accused for commission of offence punishable under Sections 279, 337 and 338 of the Indian Penal Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 2
Code and Section 181 of the Motor Vehicles Act and sentenced the petitioner to undergo rigorous imprisonment for a period of three months .
and to pay a fine of `1000/- for commission of offence punishable under Section 279 of the Indian Penal Code, rigorous imprisonment for a period of three months and to pay a fine of `500/- for commission of offence punishable under Section 337 of the Indian Penal Code, rigorous imprisonment for a period of six months and to pay a fine of `1000/- for of commission of offence punishable under Section 338 of the Indian Penal Code and to pay a fine of `500/- (in default of payment of fine to undergo rt simple imprisonment for a period of 15 days) for commission of offence punishable under Section 181 of the Motor Vehicles Act with a further direction that sentences so imposed shall run concurrently.
2. The case of the prosecution in brief was that on 16.05.2005 at around 12.30 p.m. at place Draman, accused was driving Scooter No. HIH-262 on a public way in a rash and negligent manner resulting in simple and grievous injuries to the accused as well as pillion rider, namely Ram Dhan when the said Scooter dashed against truck bearing registration No. HP-39-5524, which was being driven by the complainant coming from the opposite side. It was further the case of the prosecution that besides the fact that the accused was driving the Scooter in a rash and negligent manner, he was also not having a valid driving licence. As per the prosecution, after receiving the information about the accident, ASI Onkar Singh rushed to the spot and recorded the statement of the ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 3 complainant under Section 154 of the Code of Criminal Procedure, on the basis of which FIR Ex. PW7/A was registered. ASI Onkar Singh also .
prepared the spot map Ex. PW8/A and got both the injured, which included the accused medically examined. He obtained their MLRs. as well as X-ray reports. The offending Scooter as well as truck involved in the accident were seized and both were got mechanically examined.
Photographs of the site were also taken. The statements of the witnesses of were duly recorded under Section 161 of the Code of Criminal Procedure.
After completion of investigation, the challan was filed in the Court and rt as a prima facie case was found against the accused, notice of accusation was put to him for commission of offences punishable under Sections 279,337 and 338 of the Indian Penal Code and Section 181 of the Motor Vehicles Act, to which he pleaded not guilty and claimed trial.
3. Learned trial Court vide its judgment dated 02.07.2008 convicted and sentenced the accused for commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and Section 181 of the Motor vehicles Act. While returning the finding of conviction against the accused, it was held by the learned trial Court that it stood established by the prosecution that on the relevant date, time and place, the Scooter which met with the accident was being driven by the accused and the defence taken by the accused to the contrary could not be substantiated. Learned trial Court further held that the testimonies of PW-1 Sanjeev Kumar and PW-2 Ram Dhan clearly proved ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 4 that the accident occurred due to rash and negligent driving of the accused as a result of his striking the Scooter with the rear tyres of the .
truck. It was further held by the learned trial Court that as the accused could not prove on record that he was having a valid driving licence at the time of accident and no such valid driving licence was produced by the accused during the course of trial, therefore, it could safely be deduced that the accused was driving the offending Scooter without a valid driving of licence. On these bases, the learned trial Court returned its findings of conviction against the accused.
4. rt In appeal, the findings so returned by the learned trial Court were upheld by the learned appellate Court. It was held by the learned appellate Court that both PW-1, the complainant as well as PW-2 Ram Dhan, the pillion rider of the Scooter which was being driven by the accused, corroborated the case of the prosecution in material particulars to the effect that at the time of accident, the Scooter was being driven by the accused and the factum of both Ravi Kumar and PW-2 Ram Dhan having suffered injuries on account of the said accident, which was evident from MLCs. also stood proved on record, which demonstrated the presence of accused at the place of accident beyond reasonable doubt.
Learned appellate Court by further relying upon the judgment of the Hon'ble Supreme Court in State of H.P. Vs. Varinder Kumar 2008 Cr.
L.J. 4175 held that learned trial Court had rightly appreciated the evidence in its right perspective and as all ingredients of Sections 279, ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 5 337 and 338 of the Indian Penal Code and Section 181 of the Motor Vehicles Act stood proved by the prosecution by leading cogent evidence .
within the ambit of Section 3 of the Indian Evidence Act, there was nothing to interfere with the judgment so passed by the learned trial Court. On these bases, the judgment of conviction passed by the learned trial Court was upheld by the learned appellate Court.
5. I have heard the learned counsel for the parties and also of gone through the records of the case as well as the judgments passed by both the Courts below.
6. rt In the present case, the factum of the offending Scooter being driven by the accused at the time when the accident took place cannot be disputed, as it was admitted by the accused in his statement recorded under Section 313 of the Code of Criminal Procedure in reply to Question No. 3 that the Scooter in issue was being driven by him, however, his stand was that he was not driving the aforesaid Scooter in a rash and negligent manner. The factum of the accident having taken place on account of rash and negligent driving of the accused has been proved by PW-1 and though PW-2 Ram Dhan who was the pillion rider of the Scooter has been declared as a hostile witness, however, in his deposition, he has narrated and stated enough to prove the case of the prosecution. In his examination-in-chief, he has categorically stated that the accident took place on account of the negligence of accused Ravi Kumar. In his cross-examination by the learned Public Prosecutor, he ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 6 admitted the suggestion that if the driver of the Scooter had been driving the same on his own side, then the accident would not have had taken .
place. It is settled position of law that in case a witness turns hostile, then it is not as if his entire statement has to be discarded and that part of the statement which proves the case of the prosecution can always be looked into by the Courts, though with caution.
7. The Motor Mechanic, who examined the offending vehicle as of well as the truck entered the witness box as PW-4 and he categorically stated that there was no mechanical defect either in the Scooter or in the rt truck. Besides this, the Investigating Officer, who entered the witness box as PW-8 also duly corroborated the case of the prosecution and though he was subjected to lengthy cross-examination, however, nothing could be elucidated from his testimony by the defence to shroud the case of the prosecution with doubt. Therefore, keeping in view the fact that the case of the prosecution has been duly proved by the complainant, i.e. PW-1 and it has been corroborated by PW-2 as well as PW-8 and other prosecution witnesses as well as the documents which have been placed by the prosecution on record including the MLC of the accused Ex. PA as well as X-ray film, it cannot be said that the finding of conviction returned by the learned trial Court against the accused and upheld by the learned appellate Court is perverse or not borne out from the records.
Therefore, in my considered view, there is no infirmity or perversity either ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 7 with the judgment of conviction passed by the learned trial Court or the judgment passed by the learned appellate Court.
.
8. Lastly, it was contended by Mr. Vikas Rathore, learned counsel for the petitioner that taking into consideration the fact that it was the accused who himself got injured in the accident and he was a young man and was suffering the ordeal of trial since the year 2005, this Court may sympathetically consider reducing the sentence imposed upon of him.
9. In my considered view, taking into consideration the fact that rt the accident took place as far back as in the year 2005 and the accused himself was the victim of the same on account of his rash and negligent driving, the interest of justice will be served in case the sentence imposed upon the petitioner is modified.
10. Accordingly, while upholding the judgment of conviction passed by the learned trial Court as well as by the learned appellate Court, the sentence imposed upon the petitioner is reduced as under:
Section Sentence as In case of default in payment of modified/now fine, the sentence imposed. imposed.
279 IPC 15 days simple In default of payment of fine, to imprisonment and a undergo simple imprisonment for fine of `1000/-. for a period of 5 days. 337 IPC 15 days simple In default of payment of fine, to imprisonment and a undergo simple imprisonment for fine of `500/-. a period of 5 days. 338 IPC 15 days simple In default of payment of fine, to ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP 8 imprisonment and a undergo simple imprisonment for fine of `1000/-. a period of 5 days. 181 Motor The fine imposed In the absence of payment of fine, .
Vehicles upon the petitioner to undergo simple imprisonment Act for commission of for a period of 5 days.
offence punishable under Section 181 of the Motor Vehicles Act is upheld.
of It is further directed that all the sentences shall run concurrently.
rt With the above modification, the petition is disposed of.
(Ajay Mohan Goel) Judge November 11, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:32:36 :::HCHP