Himachal Pradesh High Court
Hemant Kumar vs State Of Himachal Pradesh on 6 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 219 of 2011
Decided on : December 6, 2016
Hemant Kumar ................Petitioner
.
Versus
State of Himachal Pradesh ..........Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? Yes.
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For the petitioner : Mr. Rohit Chauhan, Advocate.
For the respondent : Mr. Ramesh Thakur, Deputy Advocate General.
rt
Sandeep Sharma, Judge (Oral):
Present criminal revision petition filed under Sections 397 CrPC is directed against judgment dated 30.8.2011 rendered by the learned Additional Sessions Judge, Mandi, HP in Criminal Appeal No. 45 of 2010, upholding the judgment of conviction recorded by the learned Judicial Magistrate 1st Class, Court No.2, Mandi, HP in Police Challan No. 190-I/2003, 119-II/2003, holding petitioner-accused (herein after, 'accused') guilty of having committed offence under Sections 279, 337 and 338 IPC and convicting and sentencing the accused as per the description given herein below:
"1. To undergo simple imprisonment for six months and to pay a fine of Rs.500/- (five hundred only) and in case of non payment of fine to undergo simple imprisonment for one month for commission of offence under Section 279 of Indian Penal Code.
2. To undergo simple imprisonment for six months and to pay a fine of Rs.500/- (five hundred only) and in ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 2 case of non-payment of fine to undergo simple imprisonment for one month for commission of offence under Section 337 of Indian Penal Code.
3. To undergo rigorous imprisonment for nine months and to pay a fine of Rs.1,000/-(one thousand only) and in case of non payment of fine to undergo simple .
imprisonment for two month for commission of offence under section 338 of Indian Penal Code.
4. It is however ordered and directed that sentences of substantive imprisonment shall run concurrently. The sentence in case of non payment of fine shall run independently."
2. Briefly stated the facts as emerge from the record are that the of complainant namely Netar Singh made a statement that on 25.3.2003 at 5.45 pm, he boarded a private bus (Bharat Service) bearing No. HP-32- rt 4140 in order to go to his house. There were 25-30 passengers. When at around 6.15, the bus reached near Bajeer Bain, it rolled down in a gorge, as a result of which, he as well as other passengers suffered injuries.
Complainant, further complained that at the relevant time, vehicle in question was being driven by the accused in rash and negligent manner and in high speed. On the basis of aforesaid statement, police sent a Rukka, on the basis of which, FIR No. 96/2003 dated 25.3.2003 came to be registered at Police Station Balh, District Mandi. Police after completion of codal formalities, submitted challan in the Court against the accused under Sections 279, 337 and 338 IPC. Learned trial Court, on being satisfied that prima facie case exists against the accused, put notice of accusation to him, to which he pleaded no guilty and claimed trial.
Subsequently, learned trial Court, on the basis of material adduced by the prosecution, convicted and sentenced the accused under sections 279, 337 ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 3 and 338 IPC, as per description given above. Being aggrieved by the aforesaid judgment of learned trial Court, accused filed an appeal before the Additional Sessions Judge, Mandi, under Section 374 CrPC, which .
was also dismissed. In the aforesaid background, accused has approached this Court by way of instant petition, praying therein for acquittal after setting aside the judgments of the Courts below.
3. Mr. Rohit Chauhan, Advocate, vehemently argued that the of judgments passed by the Courts below are not sustainable as the same are not based on correct appreciation of evidence adduced on record and as rt such same deserve to be set aside. Mr. Chauhan, while referring to the judgments passed by the Courts below, strenuously argued that the Courts below have not appreciated the evidence in its right perspective, rather judgments are based on conjectures and surmises and as such same can not be allowed to sustain. Mr. Chauhan, during arguments having been made by him, made this Court to travel through the depositions have been made by the prosecution witnesses, to demonstrate that no conviction could be imposed by the Court below on the set of evidence having been adduced by the prosecution, because there were material contradictions and majority of prosecution witnesses had turned hostile. While referring to the statement of PW-1, Netar Singh, Mr. Chauhan, stated that even the complainant, nowhere stated with regard to specific speed of the vehicle at the relevant time, as such, Courts below erred in concluding that at the relevant time, vehicle in question was being driven in rash and negligent ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 4 manner by the accused, that too at a high speed. While concluding his arguments, Mr. Chauhan, forcefully contended that the learned Courts below miserably failed to take note of the fact that at the relevant time, .
one cow had come before the bus, as a result of which, accused had to take sudden turn. In the aforesaid background, Mr. Chauhan prayed that accused may be acquitted of the charges framed against him by setting aside the judgments of the Courts below.
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4. Mr. Ramesh Thakur, learned Deputy Advocate General, supported the judgments passed by the learned Courts below. Mr. Thakur, rt while referring to the judgments passed by the Courts below, vehemently argued that there is no scope of interference, whatsoever by this Court, especially in view of the concurrent findings of facts and law recorded by both the learned Courts below. Mr. Thakur, while inviting attention of the Court to the judgments forcefully argued that each and every aspect of the matter has been dealt with meticulously by the Courts below while recording conviction of accused and as such there is no merit in the present petition and the same deserves to be dismissed. With a view to refute the contentions having been put forth on behalf of the petitioner, Mr. Thakur, stated that bare perusal of statement of PW-1 Netar Singh (Complainant) suggests that at the relevant time, vehicle in question was being driven rashly and negligently at a high speed by the accused, as such, there is no illegality or infirmity in the judgments passed by the Courts below, and as such, same deserve to be upheld. Mr. Thakur, while ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 5 concluding his arguments reminded this Court of its limited jurisdiction under Section 397 as far as re-appreciation of evidence is concerned.
Learned Additional Advocate General, has placed reliance upon the .
judgment passed by Hon'ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been 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 of the correctness, legality or propriety of 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 rt 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 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."
5. I have heard learned counsel representing the parties and have carefully gone through the record made available.
6. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-
appreciate the evidence available on record. But in the present case, where accused has been convicted and sentenced under Sections 279, 337,338 of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and the same are based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case.
::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 67. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, .
(1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to of correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of rt the judgment is reproduced as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1).
However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
8. During the proceedings of this case, this court had an occasion to peruse the entire evidence on record, perusal whereof suggests that the Courts below have erred in recording conviction against the accused that too on the basis of contradictory and inconsistent pleas having been taken by the prosecution witnesses. However, this court solely with a view to ascertain the genuineness and correctness of the ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 7 submission having been made by the learned counsel for the respective parties, undertook an exercise to critically examine the evidence available on record to ensure that the judgments passed by the learned Courts .
below are not perverse and same are based on correct appreciation of the evidence available on record.
9. It is undisputed that on 25.3.2003, vehicle bearing registration No. HP-32-4140, in which 25-30 passengers were traveling, of met with an accident, as a result of which, PW-1 Netar Singh (Complainant) and other persons suffered injuries. It is also undisputed rt that the vehicle at that time was being driven by the accused, who, while recording his statement under Section 313 CrPC, claimed himself to be innocent, though he did not lead any evidence in his defence. But careful perusal of the evidence available on record suggests that during the proceedings of the case, defence of the accused was that since one cow had suddenly emerged before the bus, he had to take a right turn, as a result of which, bus fell in a gorge. In the present case, prosecution has examined as many as 12 witnesses to prove its case. But careful perusal of judgments passed by learned Courts below as well as evidence available on record clearly suggests that except for PW-1 Netar Singh (complainant), none of the material prosecution witnesses supported the prosecution case. Apart from PW-1, Netar Singh, there are two material witnesses i.e. PW-2 Dhaneshwari Devi and PW-3 Durga Dass, who at the relevant time, were also traveling in the same bus alongwith complainant, ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 8 Netar Singh, whereas PW-5 Pawan Kumar is a witness of recovery, PW-6 is Parvati, PW-7 Om Parkash has prepared challan, and PW-8 Dr. P.K. Soni, has examined the injured and rendered his opinion in the shape of .
MLC (Ext. PB). PW-9 Deepak Kumar is also a witness of recovery and PW-10 Dina Nath has conducted investigation. PW-12 Breastu Ram has conducted mechanical examination of the vehicle in question.
10. Close scrutiny of the judgments passed by learned Courts of below suggests that the Courts below, while recording conviction against accused have placed heavy reliance on the statement of PW-1 Netar rt Singh as well as documentary evidence available in the shape of photographs and spot map adduced on record by the prosecution. PW-1 Netar Singh in his deposition before the Court stated that he was traveling in the bus. When it came near Bajir Bain, it fell down. It is stated that at the relevant time, accused was driving the vehicle at a high speed, which caused the accident. In his cross-examination, he stated that the bus started from Ner Chowk at 5 pm. He also stated that it took about 4-5 minutes to board the passengers. He also stated that the vehicle stopped for 3-4 minutes near Galma Pull, Kotlu and Lakhwan. It has come in his statement that the distance between Ner Chowk and Bajeer Bowri was about 12 Kms and bus took about 50-55 minutes to cover the distance.
PW-1 Netar Singh has admitted in his cross-examination that it took about 50-55 minutes for the bus to cover a distance of 12 kms, meaning thereby that by no stretch of imagination, it can be concluded that at the ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 9 relevant time, bus was being driven in a rash and negligent manner and at a high speed, rather this Court, after carefully examining the aforesaid aspect of distance as well as speed, as projected by PW-1 Netar Singh, in .
his statement, is of the view that vehicle in question was being driven at a normal speed at the relevant time. Similarly, PW-6 Parvati Devi, in her statement, stated that on hearing noise, she reached the spot. In her cross-
examination, she denied the suggestion put to her that accused was of driving vehicle at a high speed and vehicle fell down due to rash and negligent driving of accused. She, in her cross-examination, further stated rt that there is a Bowri near the place of accident, which certainly does not prove the case of the prosecution.
11. PW-2 Dhaneshwari Devi, has also not supported the case of the prosecution. She was declared hostile. In her cross-examination by the learned APP, she categorically denied that at the relevant time, accused was driving the vehicle at higher speed and vehicle fell down due to negligence of the accused. She stated that the vehicle had fallen towards its side. She also admitted that the accident had occurred due to colpase of Danga.
12. PW-3 Durga Dass has also not supported the case of the prosecution. Accordingly, he was declared hostile. In his cross-
examination, he denied that accused was driving vehicle in rash and negligent manner and he was unable to control the vehicle due to high speed. He further stated in his cross-examination, that accident had taken ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 10 place while saving some stray animal, which had come on road. As per record available, aforesaid prosecution witnesses were the only eye-
witnesses, who witnessed the accident but interestingly, except PW-1 .
Netar Singh, none of the prosecution witnesses has stated that accident occurred due to rash and negligent driving of accused.
13. Similarly, none of the aforesaid prosecution witnesses has stated that at the relevant time, they saw accused driving bus at a high of speed, rather, their cross-examination, if read in its entirety, suggests that vehicle was being driven at a normal speed.
14. rt PW-1 Netar Singh, complainant, on whose statement, Courts below have placed strong reliance, has also not supported the prosecution case because, in his own statement, as discussed above, he has categorically stated that the bus took almost 50-55 minutes to cover distance of 12 kms. If, for the sake of arguments, it is presumed that during these 50-55 minutes, bus had deboarded passengers at the stations as narrated by PW-1, at Galma Pull, Kotlu and Lakhwan, 10 minutes can be deducted from 55 minutes, meaning thereby that bus took 45 minutes to cover distance of 12 kms, which can be easily covered in 45 minutes. If bus took 45 minutes to cover distance of 12 kms, no man of ordinary prudence can say that vehicle was being driven in a rash and negligent manner.
15. Moreover, there is another aspect of the matter, which suggests that there was no specific evidence led on record by the ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 11 prosecution suggestive of the fact that vehicle in question was being driven in a rash and negligent manner at a high speed. None of the prosecution witnesses has stated anything specifically with regard to the .
speed of the vehicle at the relevant time, which is essential for determining rashness and negligence on the part of accused. Though, PW-1 Netar Singh, who only supported the case of the prosecution, in his statement, stated that the vehicle was being driven rashly and negligently of at a high speed but he himself stated/admitted that it took 50-55 minutes for the bus to cover a distance of 12 kms, which falsifies the stand of the rt prosecution that bus was being driven in a rash and negligent manner at that time.
16. True it is that the prosecution by way of leading convincing evidence on record was able to prove the injuries suffered by PW-1 Netar Singh as well as other passengers, who were traveling in the bus at that time, but same may not be sufficient to record conviction against accused, who at the relevant time was driving bus in question.
17. Since the prosecution has miserably failed to prove that the bus in question was being driven rashly and negligently and at high speed, this Court is unable to accept the findings of the learned Courts below, which are totally based upon the statement of PW-1 Netar Singh as well as documents i.e. photographs and spot map because once rashness and negligence on the part of accused has not been duly proved, ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 12 no conviction could be recorded on the basis of material available on record.
18. Apart from above, none of the prosecution witnesses has .
specifically stated with regard to speed of the vehicle and as such, no finding could be returned by the court below on mere statement of complainant that at that relevant time vehicle was being driven rashly and negligently. Had any prosecution witness stated something with regard to of specific speed, it could be the best piece of evidence for the Court to ascertain the genuineness and correctness of the claim of the complainant rt with regard to rash and negligent driving of the petitioner-accused.
19. At this stage, reliance is placed on judgment rendered our own High Court in case titled Akshay Kumar v. State of HP, Latest HP LJ 2009 HP 72, relevant para of which reads as under:-
"8. In fact, an injury shall be deemed to be negligently caused whomsoever it is willfully caused, but results from want of reasonable caution, in the undertaking and doing of any act either without such skill, knowledge or ability as is suitable to consequences of such act, or when it results from the not exercising reasonable manner of using them or from the doing of any act without using reasonable caution for the prevention of mischief, of from the omitting to do any act which is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without an intention to cause injury or knowledge that it will be probably caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Rash and negligent act may be described as criminal rashness negligence. It must be more than mere carelessness or error of judgment."
The courts below did not appreciate the above facts that there was debris on the side of the road on the curve due to the slip, while negotiating the curve, as stated above, some witnesses have admitted that the danga gave way to the bus which caused the accident and the rash and negligent driving by the petitioner is also denied, therefore, it find that the findings of quilt arrived at against the petitioner by both the courts below were not based upon legal and proper appreciation of evidence. In the ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 13 circumstances aforesaid, the petitioner cannot be said to have criminal rashness or negligence, thus he is entitled for the benefit of doubt as two views were deducible from the evidence on record."
20. Reliance is placed upon judgment of this Court reported in .
Gurcharan Singh versus State of Himachal Pradesh 1990 (2) ACJ 598, the relevant paragraphs of which are reproduced here-in-below:-
"14. Adverting to the facts of this case, it is in evidence that the truck in question was loaded with fertilizer weighing 90 quintals. Obviously, it cannot be said that the speed of the vehicle was very fast. Secondly, it is a State Highway and not a of National Highway. Therefore, the speed on this account as well cannot be considered to be high.
"15. Coming to the statements of witnesses on this aspect, it has been stated that the truck was moving in high speed but it has not been said as to what that speed actually was. To say rt that a vehicle was moving in a high speed is neither a proper and legal evidence on high speed nor in any way indicates thereby the rashness on the part of the driver. The prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved in a case under Section 304-A of the Indian Penal Code. Further, there are no skid marks which eliminate the evidence of high speed of the vehicle. In addition to this, it has been stated by the witnesses that the vehicle stopped at a distance of 50 feet from the place of accident. This appears to be exaggerated. However, it is not a long distance looking to the two points; viz, the first impact of the accident and the last tyres of the vehicle and the total length of the body of the truck in question. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of curve which frightened the child, cannot be considered to be without substance. This can otherwise be reasonably inferred that the petitioner would have blown the horn on seeing the child on the road as it is in evidence that the child had come on the pucca portion of the road while there is no evidence as to whether the witnesses, more particularly, Ghanshyam, PW7, Chander Kanta, PW8, mother, and a few other witnesses were there at that particular time. Rather the depositions of these witnesses indicate that they were coming from some village lane which was joining the main road in question. Children of this age, usually crafty by temperament, move faster than the parents and are in advance of them while walking. This appears to have happened in the present case. Minute examination of the circumstances of this case and the evidence brought on the record, discloses that the deceased had reached the pucca portion of the road much before the arrival of his parents and the witnesses. That is why in their deposition ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 14 they have said that the child had been run over by the truck. On the other hand, the petitioner has stated that horn by him and started crossing the road which could not be seen by him and the result was the accident and the death of the child. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrian, however slow he may be driving the vehicle. In such a situation he cannot be held .
negligent; rather it appears that the parents of the child were negligent in not taking proper care of the child and allowed him to come alone to the road while they were somewhere behind and they could have rushed to pull back the child before the approaching vehicle came in contact with him as it is in their depositions that the truck driver was at a distance coming at a high speed and in case the child wanted to cross the road, it could do so within the time it reached at the place of the accident. How the accident has actually taken place, has not of been clearly and comprehensively stated by any of the witnesses. They appear to have been prejudiced by the act of the driver. Their versions are, therefore, coloured by the ultimate act of the petitioner and the fact that the child had been finished."
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21. In the aforesaid case, Hon'ble Court while passing aforesaid judgment has observed that "prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved under Section 304-A of the Indian Penal Code". Definitely, there cannot be any quarrel with regard to the aforesaid observations made by the Court. But now question arises as to what can be the method/mode for measuring the exact speed of the offending vehicle at the time of accident, undisputedly, in the present case, engine of offending vehicle after falling in gorge must have stopped, no help at all could be taken from speedometer to ascertain the exact speed of the vehicle at the relevant time. To my mind, in the aforesaid situation, the eye witnesses of the accident could be the best persons to depose whether offending vehicle was in high speed or not. Apart from above, aspect of high speed can be gauged from the side/direction of the offending vehicle and ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP 15 certainly an inference of its being driven rashly and negligently on high speed can be drawn by perusing spot map, photographs and mechanical reports, which may point towards the force/impact, as supporting .
evidence. But obviously, in the absence of some specific mode to gauge the speed, only eye witnesses to the accident can be the best persons to depose the high speed/actual speed of the vehicle. In the instant case, as has been discussed in detail, none of the prosecution witness has stated of anything with regard to specific speed of the offending vehicle, rather all the prosecution witnesses in one way or the other, have admitted that rt vehicle in question was being driven in normal speed by the petitioner accused and as such, no finding could be returned by the court below that vehicle in question was being driven at high speed by the petitioner accused at that relevant time.
22. Consequently in view of the detailed discussion as well as law referred to herein above, this Court sees substantial force in the contentions put forth on behalf of the petitioner and as such, present petition is allowed. Accordingly, judgments passed by the Courts below are set-aside. Accused is acquitted of the charges so framed against him.
Bail bonds of the accused are discharged. Interim orders, if any, are vacated. All applications, if any, also stand disposed of.
(Sandeep Sharma) Judge December 6, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:41:34 :::HCHP