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2000 DIGILAW 192 (HP)

BHAGWAN DASS v. STATE OF H. P.

2000-07-26

LOKESHWAR SINGH PANTA

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JUDGMENT Lokeshwar Singh Panta, J.—In Criminal Case No. 224-11/93/92, Bhagwan Dass petitioner herein, driver of private bus bearing registration No. HIK-6575 was convicted by Judicial Magistrate 1st Class, Kangra for the commission of the offences under Sections 279 and 304-A of the Indian Penal Code and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 1,000/- under Section 304-A of the Indian Penal Code. In default of payment of fine, the petitioner was to suffer simple imprisonment for two months. However, no separate sentence has been awarded under Section 279 IPC on the ground that both the offences took place in the same transaction. On appeal the learned Additional Sessions Judge (I), Kangra at Dharamshala has upheld the conviction and sentence of the petitioner and accordingly dismissed his appeal. Now the petitioner has filed the present revision petition under Section 397/401 Cr.P.C. challenging the correctness and validity of the judgment and order of the learned Additional Sessions Judge. 2. Briefly stated the prosecution case was that on 24.2.1992, the petitioner was driving bus bearing registration No. HIK-6575 on Nagrota Bagwan and Kangra road. Smt. Naro Devi, her daughter Pushpa and son-in-law Pritam Chand (PW-3) were waiting at Gaggal Chowk for taking lift in some vehicle on the said day. When the vehicle of the petitioner reached at Gaggal Chowk, as per the prosecution case, the petitioner was driving the vehicle rashly and negligently, as a result of which the vehicle hit against Smt. Naro Devi, her clothes got entangled in the bumper and the vehicle crushed her left leg. Smt. Naro Devi was taken to Zonal Hospital, Dharamshala and then to Post Graduate Institute of Medical Science (PGI), Chandigarh, where she succumbed to her injuries on 14.3.1992. The report of the accident was made to the police by Raghubir Singh (PW-2) who was running a tea shop at Gaggal Chowk and his statement was recorded under Section 154 Cr.P.C. marked Ext. PW-2/A on the basis of which formal First Information Report Ext. PW-4/A was recorded by Sh. Pritam Singh (PW-4), Station House Officer, Kangra. ASI Sh. Sabu Singh (PW-7) inspected the spot of the accident and prepared spot map Ex. PW-7/B. ASI Sabu Singh summoned Photographer Parmod Singh (PW-5), and Kewal Kumar (PW-6), who mechanically examined the vehicle of the petitioner after the accident. Statements of other witnesses were also recorded by the Investigating Officer. Pritam Singh (PW-4), Station House Officer, Kangra. ASI Sh. Sabu Singh (PW-7) inspected the spot of the accident and prepared spot map Ex. PW-7/B. ASI Sabu Singh summoned Photographer Parmod Singh (PW-5), and Kewal Kumar (PW-6), who mechanically examined the vehicle of the petitioner after the accident. Statements of other witnesses were also recorded by the Investigating Officer. In Zonal Hospital, Dharamshala, Dr. R.K. Sharma (PYV-1), medically examined injured Smt. Naro Devi and found two injuries on her person. After completion of the investigation charge-sheet was laid against the petitioner before the learned trial Magistrate for the commission of the offence punishable under Sections 279 and 304-A IPC. 3. The accusation was put to the petitioner who pleaded not guilty and claimed to be tried. The prosecution examined as many as seven witnesses. The petitioner in his statement recorded under Section 313 Cr.P.C. has admitted the driving of the vehicle by him on the relevant day and time and the factum of the accident. He has also admitted the death of deceased Smt. Naro Devi in the road accident. However, he has denied the allegation that he was driving the vehicle in a rash and negligent manner. He pleaded that some passengers opened the door of his bus which hit against Smt. Naro Devi and consequently she fell down and received injuries. The petitioner has led no evidence in defence. The learned trial Magistrate on appraisal of the oral and documentary evidence on record came to the conclusion that the accident was as a result of rash or negligent driving of the vehicle by the petitioner which resulted crushing of the left leg of Smt. Naro Devi and as a consequence of the injuries suffered by her in the accident she died. The petitioner was accordingly convicted and sentenced as aforesaid on appeal filed by the petitioner, the learned Sessions Judge on re-appraisal and re-examination of the entire material on record has upheld the conviction and sentence of the petitioner. Hence this revision petition by the petitioner. 4. I have heard Mr. K.C. Rana, learned Counsel for the petitioner and Mr. M.S. Guleria learned Deputy Advocate General. 5. Hence this revision petition by the petitioner. 4. I have heard Mr. K.C. Rana, learned Counsel for the petitioner and Mr. M.S. Guleria learned Deputy Advocate General. 5. The main thrust of the argument of the learned Counsel for the petitioner was that both the Courts below have turned the finding of conviction against the petitioner on conjectures and surmises as the prosecution has not proved that Smt. Naro Devi sustained injuries on account of rash and negligent driving of the vehicle by the petitioner. According to the learned Counsel, the prosecution has withheld the material witness Smt. Pushpa who was accompanying Smt. Naro Devi and other witnesses who gathered at the scene of the accident and therefore, adverse inference has to be drawn against the prosecution case and in favour of the petitioner. The learned Counsel also contended that the petitioner was taking turn at Gaggal Chowk when the alleged accident had taken place and as such he could not be said driving the vehicle in a rash and negligent manner and this aspect of the matter has not been considered by both the Courts below, therefore, the petitioner has been wrongly convicted and sentenced. The learned Counsel next contended that the case of the prosecution is that the bumper of the vehicle struck against Smt. Naro Devi and her clothes were entangled with it, if these facts are proved to be true, it was not possible to be accepted that the accident had taken place in the manner in which it was projected by the prosecution otherwise if Smt. Naro Devi was hit by the bumper of the vehicle she would have been thrown away at a distant place and therefore the defence of the petitioner that she was hit by opening of the door by some passengers was more probable than the version of the prosecution witnesses. Lastly, the learned Counsel contended that in the facts and circumstances of the case the petitioner deserves to be shown leniency by extending benefit of Section 4 of the Probation of Offenders Act, 1958 to him being first offender. 6. Per contra, the learned Deputy Advocate General contended that this Court while considering the merits of the case will not sit a Court of appeal in exercising the revisional jurisdiction to re-assess and re-examine the evidence which has been accepted by both the Courts below. 6. Per contra, the learned Deputy Advocate General contended that this Court while considering the merits of the case will not sit a Court of appeal in exercising the revisional jurisdiction to re-assess and re-examine the evidence which has been accepted by both the Courts below. According to the learned Deputy Advocate General, the prosecution has proved its case beyond reasonable doubt against the petitioner and the testimony of eye-witness PW-Pritam Chand has been corroborated by the medical evidence and photographs placed on record. The defence of the petitioner in his statement recorded under Section 313 Cr.P.C. is an afterthought whereas such defence was not put by him to the prosecution witnesses. The learned Deputy Advocate General has sought to support the judgments and orders of the Courts below. 7. I have given my anxious and thoughtful consideration to the rival contentions of the learned Counsel. It is settled law that this Court in exercise of the revisional jurisdiction cannot sit as a Court of appeal to make re-appraisal and re-assessment of the evidence accepted by the Courts below. Both the Courts below have found on meticulous examination of the entire evidence that the accident was as a result of rash or negligent driving of the vehicle by the petitioner and this finding is pure and simple finding of fact which cannot be found unreasonable and unjustified in revisional jurisdiction of this Court. Pritam Chand (PW-3) has given true eye account of the manner in which the accident had taken place. He deposed that he along with his mother-in-law Smt Naro Devi and sister-in-law Smt. Pushpa was waiting for arrival of the vehicle at Gaggal Chowk on one side of the road when the bus being driven by the petitioner at a high speed came from behind and the bumper of the bus hit against his mother-in-law as a result thereof her clothes got entangled with bumper. He also stated that his mother-in-law on account of the accident fell down the road and the front right tyre of the vehicle crushed her left leg. When an alarm was raised the petitioner became vigilent and reversed the bus. Smt. Naro Devi became unconscious and was lifted to hospital at Dharamsala from where she was taken to PGI, Chandigarh, where she subsequently died. The ocular version of this witness is fully corroborated from photographs Exts. When an alarm was raised the petitioner became vigilent and reversed the bus. Smt. Naro Devi became unconscious and was lifted to hospital at Dharamsala from where she was taken to PGI, Chandigarh, where she subsequently died. The ocular version of this witness is fully corroborated from photographs Exts. PW-5/A to PW-5/C, which were taken on the spot by PW-Parmod Singh. A suggestion was put to PW-Pritam Chand on behalf of the petitioner that when Smt. Naro Devi tried to board the bus, she fell down in that process which the witness has categorically denied. PW-Parmod Singh photographer was not cross-examined by the petitioner. The fact that the petitioner reversed the bus even after knowing that a person had been knocked down, is clearly established from the photographs. From the plain inspection of photographs it is clearly established that the petitioner definitely reversed the bus backward because skid marks of tyre have been noticed on the road at a considerable distance from the place where Smt. Naro Devi was lying. The presence of PW-Pritam Chand at the place of accident is not disputed nor it can be doubted at all. He is natural and truthful witness and has given true version of the cause of the accident. The petitioner was required to take greater standard of care while driving the vehicle on the public road. It is proved on record that the petitioner had failed to apply the brakes of the vehicle. Both the Courts below have accepted the ocular version of PW-Pritam Chand corroborated by photographs Exts. PW-5/A to PW-5/C and on the basis of the sound appraisal and assessment of the evidence, the petitioner was found rash or negligent in driving his vehicle which resulted crushing of the left leg of Smt. Naro Devi who subsequently died due to the injuries suffered by her in that accident. The submissions of the learned Counsel that no reliance can be placed on the testimony of PW-Pritam Chand being an interested witness cannot be accepted. The testimony of PW-Pritam Chand has not been challenged by the petitioner in cross-examination. No suggestion was put to the witness that he deposed falsely in favour of the prosecution and against the petitioner for any plausible reason. The testimony of PW-Pritam Chand has not been challenged by the petitioner in cross-examination. No suggestion was put to the witness that he deposed falsely in favour of the prosecution and against the petitioner for any plausible reason. The defence of the petitioner that Smt. Naro Devi had fallen down and received injuries when she was hit by the door of the bus which was opened by some passengers was not put to him and the Courts below have rightly concluded that the said defence taken up by the petitioner was an after thought. Had Smt. Naro Devi been hit by the impact of the opening of door, she could not have sustained crushed injury. The defence of the petitioner seems to be false. 8. The learned Counsel for the petitioner has placed much reliance on the last line of the cross-examination of PW-Raghubir Singh in which this witness has stated that one old lady rushed towards the bus to catch it and in that process her body struck against the bumper with the result that she fell down on the road. This part of the statement of the witness is of no assistance to the petitioner for the reason that the defence plea of the petitioner is again different and inconsistent with the plea taken by him in his statement recorded under Section 313 Cr.P.C. and against the suggestion put to PW-Pritam Chand. The petitioner has been taking inconsistent pleas and his false explanation has further supported the circumstance appearing against him. The testimony of PW Raghubir Singh cannot be given much credence because he was not an eye witness of the accident and reached at the scene of the accident after hearing hue and cry when the accident had already taken place. Further, this witness has also admitted that when he reached at the spot of accident he saw one leg of Smt. Naro Devi crushed underneath the front tyre of the bus. He has also stated that he knew the petitioner for the last about five to six years from the date of the accident because the petitioner had been driving his vehicle on that route. The petitioner cannot get any benefit from the testimony of PW Raghubir Singh. He has also stated that he knew the petitioner for the last about five to six years from the date of the accident because the petitioner had been driving his vehicle on that route. The petitioner cannot get any benefit from the testimony of PW Raghubir Singh. The contention of the learned Counsel for the petitioner that Smt. Pushpa Devi has not been examined by the prosecution and withholding of the material witness will adversely effect the true version of prosecution case is not found tenable, Smt. Pushpa Devi has been left out from examination by the learned A.P.P. because of unnecessary repetition of the similar and identical narration of the statement made by PW-Pritam Chand who was the eye witness of the accident. Even otherwise as well Smt. Pushpa Devi is the daughter of Smt. Naro Devi and she would in no circumstances have supported the case of the petitioner and it is also settled law that the case has to be decided on the quality of the evidence and number of witnesses produced by the prosecution has not to be counted. The prosecution has clearly established and proved the guilt of the petitioner and I find no reason to differ with the finding of the Courts below holding the petitioner guilty of the offence for which he was charged. In mechanical report Ext. PW-6/ A prepared by Mechanic PW Kewal Kumar, after mechanical inspection of the bus of the petitioner it was noticed that the brakes and steering of the vehicle were perfectly alright and no other defect was found in the vehicle and from this report as well, it can be safely said that there was no other defect in the vehicle of the petitioner. 9. It is not in dispute that revisional jurisdiction of this Court has to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is manifest error on the point of law and consequently there has been a flagrant miscarriage of justice. It is equally settled law that the jurisdiction of this Court in criminal revision application is squarely restricted and it cannot embark upon re-appraisal of the evidence (See : Dull Chand v. Delhi Administration, AIR 1975 SC 1960). 10. It is equally settled law that the jurisdiction of this Court in criminal revision application is squarely restricted and it cannot embark upon re-appraisal of the evidence (See : Dull Chand v. Delhi Administration, AIR 1975 SC 1960). 10. In State of Orissa v. Nakula Sahu and others, AIR 1979 SC 663, it has been held that where neither the trial Court nor the Sessions Judge committed any error of fact or law in arriving at their conclusions and the High Court upset their concurrent findings in exercise of the revisional jurisdiction and acquitted the accused, the order of acquittal passed by the High Court was not justified. In the light of the settled position of law of the Apex Court, I am of the considered view that both the? Courts below have rightly held the petitioner guilty of the offence and the finding recorded by the Courts below are based on sound appreciation of the entire evidence brought on record. Though this Court is not obliged to re-appraise and re-assess the evidence again in criminal revision application about the fact whether the petitioner was rash or negligent in driving the vehicle which resulted in crushing of the left leg of Smt. Naro Devi who subsequently died because of the injuries suffered by her in the accident, yet to appreciate the contentions of the learned Counsel for the petitioner, some material evidence relevant for the decision of the revision petition has been considered in the earlier part of the judgment. 11. Both the Courts below have considered and rejected the request of the petitioner for giving him the benefit of Probation of Offenders Act; and again same prayer has been repeated by Mr. Rana on his behalf before me. It is pertinent to note that the petitioner has been awarded simple imprisonment of six months and fine of Rs. 1,000/- under Section 304-A I.PC. and no separate sentence has been imposed upon him by the Courts below under Section 279 IPC and in these circumstances the petitioner has been leniently dealt with by both the Courts below. It is pertinent to note that the petitioner has been awarded simple imprisonment of six months and fine of Rs. 1,000/- under Section 304-A I.PC. and no separate sentence has been imposed upon him by the Courts below under Section 279 IPC and in these circumstances the petitioner has been leniently dealt with by both the Courts below. In State of Karnataka v. Krishna alias Raju, AIR 1987 Supreme Court 861: 1987 (1) SCC 538, the Apex Court did not allow a sentence of fine, imposed on a driver who was convicted under Section 304-A IPC to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing death of a human being. In that case the Apex Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine. In Dalbir Singh v. State of Haryana, JT 2000 (5) SC 463, their Lordships while dealing with the sentence part of the driver of the bus who was convicted by the Courts below under Sections 304-A and 279 IPC held as under : "When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professionals drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain deterrent element in sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic. (Para 1) Again it has been observed as under : "Releasing the convicted person on probation of good conduct must appear to the Court to be expedient. The work "expedient" had been thoughtfully employed by the Parliament in the Section so as to mean it as "apt and suitable to the end in view". The word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the Court to take into account "the circumstances of the case including the nature of the offence.....". The word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the Court to take into account "the circumstances of the case including the nature of the offence.....". This means Section 4 can be resorted to when the Court considers the circumstances of the case, particularly the nature of the offence, and the Court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct." (Paras 9 and 10) 12. Further the Criminal Courts have been cautioned in Para 13 as under: "Criminal Courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence." (Para 13) 13. In the facts and circumstances of the present case and in the light of the decisions of the Apex Court it is not in the interest of justice to show any leniency of extending the benevolent provisions of Section 4 of the Probation of Offenders Act in favour of the petitioner and his prayer deserves rejection. 14. No other point has been urged by the learned Counsel on either side. 15. For the abovesaid reasons, the revision petition is devoid of merit and it is accordingly dismissed. The petitioner is on bail and his bail bonds are cancelled. The petitioner shall surrender before Sub Divisional Judicial Magistrate, Kangra who shall commit him to prison to serve out the sentence awarded to him. In the event of failure of the petitioner to surrender, the trial Magistrate shall procure his presence by issue of non-bailable warrants and then to commit him to prison as aforesaid. Revision dismissed.