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2001 DIGILAW 270 (HP)

HARBHAJAN SINGH v. STATE OF H. P.

2001-10-04

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- This revision petition is directed against the order dated 9.7.1998 passed by the learned Additional Sessions Judge, Una whereby the conviction of and sentence awarded to the petitioner/accused (here-after referred to as the accused) under Sections 279,337 and 304-A of the Indian Penal code by the learned Judicial Magistrate, I-Class (II), Una vide his judgment dated 1.9.1994 had been maintained and the appeal of the accused had been dismissed. 2. Brief facts leading to the presentation of the revision petition are that on 5.11.1989 at about 9.15 a.m. at village Jhalera when Brahma Nand (PW-3) was sitting in his shop and Bhan Singh (PW-4), Suresh Kumar (PW-2), Gian Chand and Bhagwant Parkash were standing outside the shop, truck No.CHW-7692 driven by the accused rashly and negligently came from Basal side, dashed against the shop of PW-3 and then against the shop and Bhatti of Dev Raj in between all shops and Khokhas stood demolished and Gian Chand, Bhagwant Parkash, Suresh Kumar (PW-2) and Bhan Singh (PW-4) were crushed by the truck and thereby sustained injuries. Gian Chand and Bhagwant Parkash succumbed to the injuries on the spot. On receipt of telephonic message about the occurrence, report Ext. PW-1 I/A was recorded at Police Station, Una. Kapil Dev (PW-11), the then Deputy Superintendent of Police, proceeded to the spot where he recorded statement of PW-3 under Section 154 of the Code of Criminal Procedure Ext.PW-3/C and sent the same to the Police Station where formal FIR. Ext. PW-8/A was recorded by Ramesh Chand (PW-8). The injured were admitted to the hospital where they were medically examined by Dr. Hans Raj Sharma (PW-6). The MLC. in respect of medical examination of PW-2 is Ext. PW-6/A and that about the medical examination of PW-4 is Ext. PW-6/B. About the deceased Bhagwant Parkash and Gian Chand inquest reports respectively Ext. PW-11/D and Ext. PW-11/E were prepared and their dead bodies were removed to the hospital for post mortem examination. PW-6 conducted the post mortem examination of Bhagwant Parkash and his post mortem report is Ext. PW-6/C. The post mortem examination of dead body of Gian Chand was also conducted and the post mortem report qua him is Ext.PW-11/H. The spot was photographed, the negatives where of are Ext.P-5 to Ext. P-8 and the developed photographs are Exts. P-1 to P- 4. PW-6/C. The post mortem examination of dead body of Gian Chand was also conducted and the post mortem report qua him is Ext.PW-11/H. The spot was photographed, the negatives where of are Ext.P-5 to Ext. P-8 and the developed photographs are Exts. P-1 to P- 4. The offending truck was taken into possession along with its documents vide memo. Ext. PW-3/A. It was mechanically examined by Sarup Lal PW-1) and the mechanical examination report issued by him is Ext. PW-l/A. After completion of the collection of material by the investigating agency, a charge-sheet was submitted against the accused and he came to be tried for the commission of offences punishable under Sections 279, 337 and 304-A of the Indian Penal code. 3. To prove the accusation against the accused, the prosecution examined 11 witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure wherein he claimed to be innocent and attributed the accident to the act of the two of the deceased who had not moved out of the centre of the road despite horn and when to save them the accused moved his vehicle to one side, they also turned to that side and when the accused moved the vehicle to another side, they also moved towards that side and thus he has attributed the accident to the mistakes committed by the deceased. The accused, however, did not lead any defence evidence. 4. The learned trial Magistrate held the accused guilty of the commission of the said offences and accordingly sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.2,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of two months, the accused preferred an appeal which was dismissed by the learned Additional Sessions Judge by the impugned judgment. 5. I have heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent-State and have also gone through the records. 6. This is a revision against the concurrent findings of the two courts \ below. In Kehar Singh and others v. State of H.P. 2000(1) Cr.L.J.(HP) 304, I while dealing with the scope of interference by the High Court in exercise of its revisional powers, this Court held as under:- "6. 6. This is a revision against the concurrent findings of the two courts \ below. In Kehar Singh and others v. State of H.P. 2000(1) Cr.L.J.(HP) 304, I while dealing with the scope of interference by the High Court in exercise of its revisional powers, this Court held as under:- "6. It may be pointed out at the very outset that the revisional power of the High Court though very wide is purely discretionary to be exercised fairly according to the exigencies of each case. It is well settled that such power is normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there had been a flagrant mis-carriage of justice. It is to be exercised only for correcting injustice and not mere illegality. Re visional court thus is not expected to act as a court of appeal and the jurisdiction is not to be ordinarily invoked or used merely because the lower court(s) have taken a wrong view of the law or mis-appreciated the evidence on record. The Revisional Court would not interference with the order of the lower court unless it is shown to be perverse or without evidence or not tenanble in law or simply because other view is possible (see Narain Tiwari v. State of West Bengal, AIR 1954 SC 726, Amar Chand Agrwalla v. Shanti Bose, AIR 1973 SC 799, Akalu Ahir v. Ram Deo Ram, AIR 1973 SC 2145 Duli Chand v. Delhi Administration, AIR 1975 SC 1960, SPS Jayam and Co. v. Neharu Sadan & Anr. AIR 1977 SC 1621, ThakurDass (dead) by LRs v. State of M.P. & Anr. AIR 1978 SC 1, State of Orissa v. Nokula Sahu & Ors., AIR 1979 SC 663, Pathumma & Anr. v. Muhammad, AIR 1986 SC 1436 and State of Karnataka v. Appa Balu Ingale & Ors., AIR 1993 SC 1126." 7. In Jaswant Rai & Ors. v. State of H.P. 2000( 1) Cr.L.J. (HP 169), this court on the same subject, held as follows:- "9. The accused have been held guilty of the offence punishable under Section 332 of the Indian Penal Code by the trial Court and under Section 332 read with Section 34 of the Indian Penal Code by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. The accused have been held guilty of the offence punishable under Section 332 of the Indian Penal Code by the trial Court and under Section 332 read with Section 34 of the Indian Penal Code by the learned Additional Sessions Judge, thus, there are concurrent findings of facts. In such a situation this Court has to necessarily examine the matter keeping in view the well-settled proposition of law that though the revisional powers of this Court are very wide but are purely discretionary and are normally to be exercised only in exceptional cases when there is a glaring defect in the procedure or a manifest error on point of law leading to grave miscarriage of justice. Therefore, the power of revision is to be exercised only for correcting the injustice and not mere illegality which may not go to the root of the case. Thus, merely because a view other than the one taken by the Courts below is possible, the findings recorded by such Courts are not to be disturbed." 9. The case on hand when examined on the basis of the above settled position in law calls for no interference with the concurrent findings recorded by the Courts below. 10. There is no dispute that the accident in question occurred and resulted in injuries to Gian Chand, Bhagwant Parkash, Sures Kumar and Bhan Singh and as a consequence of the injuries Gian Chand and Bhagwant Parkash died. It is also not disputed that at the relevant time the accused was driving the offending vehicle. It was, however, contended by the learned counsel for the accused tat the deceased were standing in the centre of the road and did not move away despite blowing of the horn by the accused and when the accused turned the truck to the side with a view to save those persons, they also moved in the same direction. The accused again turned the truck to save them but they also moved to the same side and thus the accident took place due to the acts of the deceased despite efforts by the accused to save them. This is how the accused has also explained the occurrence in his statement under Section 313 of the code of Criminal Procedure. 11. PW-3 has fully supported the prosecution version. This is how the accused has also explained the occurrence in his statement under Section 313 of the code of Criminal Procedure. 11. PW-3 has fully supported the prosecution version. According to him, the offending vehicle was driven at a high speed, it struck against a Rehara, then before a corner of his shop and then struck a Bhatti and stopped when the struck against a Shahtoot tree. He has further stated that in the process it hit the injured near the Rehara. The aforesaid defence of he accused has not been put to this witness in his cross-examination. This version by and large is supported by PW-4 who has further stated that the accused had not blown the horn. The aforesaid defence version has not been put to him in his cross-examination. PW-2 has stated that he had not seen anything though was injured in the accident. He was declared hostile and in the cross-examination for the prosecution, has admitted that the deceased and the injured were standing in front of the shop of PW-3 and the offending vehicle climbed upwards. When cross-examined for the accused. This witness is highly unreliable as he has made self- contradictory statement. The version of PW-3 and PW-4 is not only reliable but supported by the circumstances At the place of occurrence there are shops on both sides of the road, hence a place where a driver is required to take proper precaution to drive the vehicle. The total damage done by the vehicle by striking against human beings, shops, Bhati and then a tree are clearly suggestive of the fact that the vehicle in question which was admittedly in proper mechanical condition, was driven in a highly rash manner. The unchallenged spot position vide site plan Ext.PW-11/C, reports Exts. PW-11/D and PW-11/E clearly show that the offending vehicle after leaving the road, caused the loss of life and property. Thus, in view of the material on record, the concurrent findings of fact arrived at by the Courts below that the accident occurred due to rash and negligent driving by (?) the offending vehicle by the accused, are fully justified. 12. It is further contended by the learned counsel for the accused that the accident occurred about 12 years before and since then the accused is facing trial etc. and the consequential mental agony. 12. It is further contended by the learned counsel for the accused that the accident occurred about 12 years before and since then the accused is facing trial etc. and the consequential mental agony. Therefore in the event of maintaining his conviction, a lenient view regarding sentence would be fully justified. 13. The sentence is a matter of discretion of the trial Court which convicted the accused. The unfortunate incident which resulted in the loss of two lives and two persons sustained injuries has been found to be a direct result of reckless and negligent driving by the accused. The magnitude of the damage caused by the accident in itself bears testimony of the callousness and negligence on the part of the accused. However, the occurrence took place on 5.11.1989. It took about five years to conclude the trial and the accused was convicted and sentenced on 1.9.1994. He preferred an appeal against the conviction and sentence which took another four years for its disposal and was disposed of on 9.7.1998. His revision, i.e. the present petition, took more than three years for its final disposal. Thus, the accused has been facing the agony of the trial and litigation for the last about twelve years. Thus, the accused had to undergo rigours of criminal prosecution for about five years which is too long period to be kept in suspense and under tension. In addition, he had to face the same state of mind for about seven years during the pendency of the appeal and the revision petition. Be it stated that on the basis of the records this delay in the disposal of the trial, appeal and the revision can not be attributed I to the accused at all. In these circumstances, I feel that some leniency in the matter of sentence will not be unjustified. 14. As a result, while maintaining the conviction of the accused, the sentence of imprisonment awarded to him is reduced to three months, however, the amount of fine is enhanced to Rs.5,000/- In default of payment of fine, the accused shall suffer rigorous imprisonment for three months. 15. The accused that is presently on bail, shall surrender before the trial Court within 15 days and be committed to jail to serve out the sentence. 15. The accused that is presently on bail, shall surrender before the trial Court within 15 days and be committed to jail to serve out the sentence. In case of his failing to surrender as aforesaid, the trial Court will take appropriate steps to commit him to jail. 16. The revision petition is disposed of in terms of the above orders.