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2003 DIGILAW 78 (HP)

HARISH v. STATE OF H. P.

2003-04-08

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This revision petition is directed against the judgment dated 2.2.2001, passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala, whereby appeal of the accused-petitioner (hereafter referred to as the accused) against the judgment dated 29.5.2002, passed by the learned Judicial Magistrate 1st Class (I), Dharamshala, convicting the accused under Sections 279 and 304-AIPC and sentencing him to undergo rigorous imprisonment for one year and fine of Rs. 1,000 and in default of payment of fine, to undergo simple imprisonment for two months, had been dismissed. 2. Briefly stated, the facts leading to the filing of the present petition are that on 15.2.1996, at about 1.15 p.m., Rumelu (since deceased) was coming from Darini to Shahpur after collecting the mail. When he reached near Post Office, Shahpur, the accused, while driving scooter No. HP-40-0594 in a rash and negligent manner, came from Shahpur side and hit the deceased with the scooter. With the impact of the collision, the deceased fell on the ground and sustained bodily injuries. He was shifted to Zonal Hospital, Dharamsala. The occurrence was reported to the police by Dev Raj (PW-3) vide his statement Ex. PW-3/A under Section 154 Cr.P.C. on the basis of this information, FIR Ex. PW-12/B under Sections 279, 337 IPC and Section 184 of Motor Vehicle Act was recorded at Police Station, Shahpur. The deceased, however, succumbed to the injuries sustained by him in the accident, therefore, the offence under Section 337 was substituted by Section 304-A IPC. During investigation, MLC about the medical examination of the deceased Ex. PW-l/A issued by Dr. Ajay Dutta was obtained. After the death of the deceased. Post mortem examination of his dead body was conducted by Dr. D.P Swami, and the post mortem report issued by him is Ex. PW-2/A. The offending scooter was taken in possession vide memo Ex. PW-5/A. The scooter was got mechanically checked up and was found in proper driving condition vide report Ex. PW-14/A. After collecting the evidence against the accused, the concerned SHO submitted a charge sheet against the accused under Sections 279, 304-A IPC and Sections 184 and 181 of the Motor Vehicle Act. The accused was tried by the learned Judicial Magistrate 1st Class (I), Kangra at Dharamsala on the accusations under Sections 279, 337 and 304-A IPC and Section 184 of the Motor Vehicle Act. The accused was tried by the learned Judicial Magistrate 1st Class (I), Kangra at Dharamsala on the accusations under Sections 279, 337 and 304-A IPC and Section 184 of the Motor Vehicle Act. To prove the accusations against the accused, the prosecution examined as many as 14 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the case of the prosecution as a whole and claimed to be innocent. The accused led defence and examined Rajiv Mahajan (DW-1) in defence. 3. On consideration of the evidence on record, the learned trial Magistrate held the accused guilty of the commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code and accordingly convicted and sentenced him as aforesaid vide judgment dated 29.5.2000. Being aggrieved, the accused preferred an appeal which was heard and dismissed by the learned Additional Sessions Judge (I), Kangra at Dharamsala by the impugned judgment. Hence this revision petition by the accused. 4. I have heard the learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the records. 5. It may be pointed out at the very outset that there are concurrent findings of the two courts below that the fatal accident occurred because of the rash and negligent driving of the scooter by the accused. It is well settled that the revisional powers of the High Court though 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 a point of law leading to miscarriage of justice. The revisional powers are meant for correcting the injustice and not the defects and illegalities which do not go to the root of the case. Concurrent findings of the Courts are ordinarily not to be interfered with even if a view other than the view taken by such courts is possible. 6. It was contended by the learned Counsel for the petitioner that no independent witness was examined by the prosecution to connect the accused with the commission of the offence alleged to have been committed by him. 6. It was contended by the learned Counsel for the petitioner that no independent witness was examined by the prosecution to connect the accused with the commission of the offence alleged to have been committed by him. Elaborating the contention, the learned Counsel urged that the alleged witnesses of the occurrence PW-3, PW-7 and PW-9 are all employees of the same department in which the deceased was employed, therefore, these witnesses cannot be said independent and could be influenced to make a statement pro prosecution to ensure grant of compensation to the survivors of the deceased under the Motor Vehicle Act. It was also contended that PW-3 in fact is not the eye witness of the occurrence, therefore, his statement was of no help to the prosecution. 7. It is not in dispute that PW-3, PW-7 and PW-9 are employees of the same department in which the deceased was also employed but this is ipso facto no reason to disbelieve the statements of these witnesses. PW-3 admittedly has not seen the occurrence of the accident as he was sitting in his office at that time. He came to the spot when he was informed by PW-7 and PW-9 that the deceased fell down because of an accident and on reaching the spot, he saw the deceased lying injured on the road.. In these circumstances, statement of PW-3 is relevant to the extent that he was informed of the accident, he saw the deceased lying on the road in injured condition and was informed that injuries were sustained by the deceased because of the accident caused by the accused. The occurrence of accident is fully supported by PW-7 and PW-9 whose statements are natural and confidence inspiring. The accused had suggested different defences to the PWs at different stages. One of the defences so suggested to PW-3 and PW-9 is that the accused was not driving the scooter at a high speed and the accident did not occur because of his fault. The suggestion has been denied by the witnesses. It is, however, implicit in the suggestion that the accused was driving the scooter. It was suggested to PW-7 that the deceased had come running, struck and fell down. It is not clear in the suggestion as to against what object the deceased had struck. The suggestion has been denied by the witnesses. It is, however, implicit in the suggestion that the accused was driving the scooter. It was suggested to PW-7 that the deceased had come running, struck and fell down. It is not clear in the suggestion as to against what object the deceased had struck. The suggestion which is not in conformity with the suggestion put to PW-3 has been denied by the witness. It was suggested to PW-9 that the deceased sustained the injuries due to fall on the road. This witness has also denied the suggestion. It had been suggested to PW-12 that the deceased while alighting from the bus fell down for want of maintaining the balance. Evidently, this suggestion is also not in conformity with the suggestions put to the other witnesses. Accused in his statement under Section 313 Cr.P.C. did not explain the injuries sustained by the deceased on the basis of the suggested defence or any another ground. However, he examined DW-1 in defence. According to DW-1, the deceased after crossing the slab of the drain, struck against the standing scooter and could not maintain balance and fell in the drain and the scooter fell upon him. 8. The inconsistency in the defence of the accused is suggestive of the fact that he had no defence at all. DW-1 examined by the accused has clearly stated about collision of the deceased with the scooter though in different set of circumstances, yet his statement comes to that the deceased sustained injuries not because he fell while alighting from the bus or while running on the road, but because of the collision with the scooter. In view of the statements of PW-7 and PW-9 supported by the suggestion that the scooter was not being driven at a high speed, it is established that the scooter struck against the deceased when it was being driven by the accused and so are the concurrent findings of the Courts below. 9. It was also contended by the learned Counsel for the accused that to sustain conviction under Sections 279 and 304-A IPC, one of the common ingredients is that the act complained against must have been done rashly and/or negligently by the accused. However, there is no evidence that the accused was driving the scooter in a rash or negligent manner. It was also contended by the learned Counsel for the accused that to sustain conviction under Sections 279 and 304-A IPC, one of the common ingredients is that the act complained against must have been done rashly and/or negligently by the accused. However, there is no evidence that the accused was driving the scooter in a rash or negligent manner. Therefore, contended the learned Counsel, the conviction of the accused under Sections 207 and 304-A IPC is bad in law. 10. As already stated, PW-7 and PW-9 are the eye witnesses of the occurrence. PW-7 has stated that the scooter being driven by the accused came from Shahpur side and hit the deceased. Evidently, the witness has not imputed any rash or negligent act to the accused but at the same time, he has not stated that accused was not at fault in causing the accident. PW-9 has specifically and clearly stated that because of the high speed of the scooter, the accused struck it against the deceased and that the accident occurred because of the mistake of the driver. There is nothing to disbelieve the statement of this witness. It is evident from the statement of Ramesh Pal (PW-14) read with his report Ex. PW-14/A that the scooter in question was in perfect driving condition. Thus, it cannot be said that no rashness or negligence in driving the scooter by the accused is proved. 11. In view of the above discussion, the courts below have not committed any illegality, irregularity or impropriety in recording the impugned conviction and sentence which may justify interference by this Court. 12. As a result, this revision petition fails and is accordingly dismissed. The accused to surrender to his bail bonds to serve out the sentence awarded to him by appearing before the trial Court within two weeks failing which the trial Court to take steps in accordance with law to secure the presence of the accused and to execute the sentence awarded to him. Revision dismissed.