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2004 DIGILAW 206 (HP)

Gopal Singh v. State Of Himachal Pradesh

2004-09-01

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. This petition has been preferred by the petitioner accused (hereafter referred to as the accused) against the judgment dated 23.10.2000 passed by the learned Sessions Judge, Kullu whereby the appeal of the accused against his conviction and sentence awarded by the learned Judicial Magistrate, 1-Class Class, Manali, vide judgment dated 21.8.1999 has been dismissed. 2. The facts leading to the filing of the present petition, briefly stated, are as follows. On 21.1.1995 about 4.30. p.m. the accused was driving Truck No. HP-34-2931 on the National Highway No. 21 at Patlikuhl in a rash and negligent manner and while so driving, crushed to death a child, aged about 3 years, under the front wheel of the Truck, while the mother of the deceased child Kiran (PW-1) going to fetch water was followed by the deceased. About the occurrence PW-1 made statement Ext.PA to the police on the basis of which FIR Ext. PW-8/A was registered at Police Station, Manali and the investigation followed. As per the post mortem report Ext. PW-4/A, the deceased died due to external hemorrhage from the external wound and cerebral contusion leading to cardio respiratory arrest. During investigation, the offending truck along with its documents was taken in possession vide memo Ext. PB and the site plan was prepared by the Investigating Officer HC Chanshayam which is Ext. PW-9/A. The truck in question was got mechanically examined and was found in perfect driving condition vide mechanical report Ext. PW-6/A. The photographs of the place of the occurrence Exts. PW-5/A to PW-5/D were also taken. On completion of investigation, a charge-sheet was submitted against eh accused under Sections 279 and 304-A of the Indian Penal Dode and Section 189 of the Motor Vehicles Act. The accused, however, was tried on the accusations under Sections 279 and 304-A of the Indian Penal Code to prove the accusations against the accused, prosecution examined as many as nine witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the prosecution case as a whole. The accused, however, did not Pad any evidence in defence. 3. On consideration of the evidence on record, the trial court convicted the Accused under Sections 279 and 304-A of the Indian Penal Code and sentenced pirn to simple imprisonment for three months under Section 279 and simple imprisonment for six months and fine of Rs. The accused, however, did not Pad any evidence in defence. 3. On consideration of the evidence on record, the trial court convicted the Accused under Sections 279 and 304-A of the Indian Penal Code and sentenced pirn to simple imprisonment for three months under Section 279 and simple imprisonment for six months and fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for 30 days under Section 304-A of the Indian venal Code. 4. Aggrieved by the conviction and sentence as awarded by the trial court, tie accused preferred an appeal before the learned Sessions Judge, Kullu which as dismissed by the impugned judgment. Hence, this petition by the accused. 5. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent State and have also gone through the records 6. The accused in his statement under Section 313 of the Code of Criminal Procedure has denied that he was driving the truck in question at the relevant time that he caused the accident as alleged by the prosecution. In this regard there are concurrent findings of the Courts below that the accused was in fact driving the truck lid the accident did occur. These concurrent findings of fact recorded by the courts below are supportable on the basis of the evidence on record consisting of the statements of Kiran (PW-1), Chet Ram (PW-2), Krishan Bahadur (PW-3) and Ramesh Chand (PW-7), the eye witnesses of the occurrence, Dr. Sher Singh Bodh (PW-4) who conducted the post mortem examination of the deceased and HC Ghanshyam (PW-9) who took in possession the offending truck, prepared the site-map Ext. PW-9/A and arrested the accused. The findings that the accused was at the relevant time driving the offending truck and caused the accident, has not been disputed even at the time of arguments, therefore, call for no interference in exercise of the revisional powers of this Court as per the well settled legal position in this regard vide various judgments of this court, some of which are referred to herein below. 7. In Jaswant Rai and others v. State of H.P. (2000 Cri.L.J. 1970), this Court, while dealing with the scope of revisional powers of the High Court, held as under:- 9. 7. In Jaswant Rai and others v. State of H.P. (2000 Cri.L.J. 1970), this Court, while dealing with the scope of revisional powers of the High Court, held as under:- 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. In such 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. 7. In Ramesh Kumar v. State of H.P., (2000 (2) S.L.J. 1401, this Court re-affirmed the above view and held as under: - "5. Be it stated at the very outset that revisional powers of this court are discretionary and are normally to be exercised only in exceptional cases when there is any glaring defect in the procedure or a manifest error on a point of law leading to grave miscarriage of justice. The powers of revision are to be exercised only for correcting the injustice and not mere irregularity which does not got to the root of the case. Merely because a view other than the one taken by the courts below is possible, the findings recorded by such Court are not be interfered with. (See Criminal Revision No. 78/1999 Vimal Kishore v. D.D. Gautam and another decided on 29.12.1999). It is in view of the above well settled proposition of law that the present petition requires examination and consideration." 8. Similar view has been taken by this Court in Ram Lal v. State of H.P. (Cr. Appeal No. 42/2000, decided on 25.8.2004), 9. (See Criminal Revision No. 78/1999 Vimal Kishore v. D.D. Gautam and another decided on 29.12.1999). It is in view of the above well settled proposition of law that the present petition requires examination and consideration." 8. Similar view has been taken by this Court in Ram Lal v. State of H.P. (Cr. Appeal No. 42/2000, decided on 25.8.2004), 9. The learned counsel for the accused has assailed the impugned judgment on the ground that there is no cogent and reliable evidence on the record to prove that the accused was rash or negligent in driving the truck which led to the accident. According to the learned counsel, the child abruptly came before the moving truck and in such a situation the accused could not be held responsible for the fatal accident on the ground of rash or negligent driving of the truck. It was, therefore, urged that the impugned conviction and sentence cannot be sustained. 10. On the other hand, the learned Deputy Advocate General, while supporting the reasoning and conclusions of the courts below, submitted that the impugned conviction and sentence being fully supportable on the basis of the confidence on record, does not call for any interference. 11. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause such injury and without knowledge that injury would probably be caused. The act must be done with rashness or indifference as to the consequences. Thus, in rashness the person does an act which he is bound to forbear and breaks a negative duty, criminal negligence is gross and culpable neglect or failure to exercise reasonable are and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person. Thus, in case of negligence a person does not perform an act to which he is obliged and breaks a positive duty. The test to judge culpability, therefore, is whether the accident could have been avoided by the accused if he had performed his ‘negative' or ‘positive' duty with care and diligence which a cautious person would have done in similar circumstances. Thus, the circumstances under which and the situation in which the accident occurred, institute important factors to decide whether the accused was rash or/and negligent in driving the offending truck. 12. Thus, the circumstances under which and the situation in which the accident occurred, institute important factors to decide whether the accused was rash or/and negligent in driving the offending truck. 12. There is un-rebutted statement of PW-1 that the deceased was at the relevant time a child of three years. Though even a walker on the road is required to like due care and caution, yet in the case of a child of three years walking on the load, the obligation is more on the driver who is driving a vehicle because a child of such a tender age is ignorant of the rules of the road. 13. Ext. P-9/A is the site map of the spot and contains particulars of the accident as per the spot position and it is proved to have been prepared at the spot PW-9 in his hand and is signed by him. Accused has not challenged the correctness of Ext. PW-9/A in the cross-examination of PW-9. As per Ext. PW-9/A, total width of the high-way on the spot consists of 17 feet tarred road, and 6 feet ha road on the right side. Thus, the road is quite wide at the spot. The child was rushed to death close to the western side of the road having more than enough red on the eastern side for heavy vehicles to pass. 14. PW-9 has stated that "DURGHATANA SIHAL KE CHARON ORE GHANI ABADI HAI'. On suggestion given by the accused, the witness admitted that &any people remain present in Patlikuhal Bazar. Similarly, on suggestion from the accused, PW-3 ahs admitted that there are so many shops on the spot. Thus, even 6 per the suggestions of the accused, admitted by PWs. The place of occurrence 4ss considerably populated area around it. Therefore, it was duty of the accused to jemore cautious in his driving in such a place. In view of this admitted situation, it as duty of the accused to blow horn and to drive slowly. The accused in his statement does not claim to have taken either of the aforesaid precautions. On the intrary, PW-1 has stated that the accused did not blow the horn before causing the accident. 15. There is no evidence on record as to the exact speed at which the truck was driven by the accused at the relevant time. The accused in his statement does not claim to have taken either of the aforesaid precautions. On the intrary, PW-1 has stated that the accused did not blow the horn before causing the accident. 15. There is no evidence on record as to the exact speed at which the truck was driven by the accused at the relevant time. PW-1 has stated that the truck was speed and crushed the child. In the cross-examination she has further stated that tie accused did not blow the horn. It is clearly and unambiguously stated by PW-3 that the truck was in speed and the accused is to be blamed for the accident as he was driving the truck in speed. PW-7 has also stated that the truck was driven "TEJI SE". However, none of the witnesses has stated as to what was the speed of the truck per hour. It is not expected of the bystanders or passers-by to give the speed of moving vehicles in Kilometers/miles per hour and even if they state about such speed, it may not be correctly given and may be stated either in a casual manner or may be exaggerated. Therefore, a conclusion about the speed of a vehicle can be formed, if possible, on the basis of the relevant surrounding circumstances brought on record. 16. A perusal of site-map Ext.PW-9/A shows skid marks to the extent of 12 feet at the place of occurrence. PW-9 in his cross-examination has stated that he had shown the skid marks in Ext. PW-9/A. There is no further cross-examination of the witness in this regard. Thus, it is firmly established that from the dead body of the child towards the side from the where the truck was coming, there were skid marks to a distance of 12 feet. The very existence of these skid marks shows that the truck was not driven at a normal speed at which it ought to have been driven in a road having sufficiently populated area around it. On the contrary, it was driven at a high speed. 17. As is evident from the unchallenged and un-controverted site map Ext. PW-9/A, there is no curve at the place of occurrence and the child could have been seen on the road before the offending truck hit and crushed him. 18. The offending truck after the accident was mechanically examined by Harfu Ram (PW-6). 17. As is evident from the unchallenged and un-controverted site map Ext. PW-9/A, there is no curve at the place of occurrence and the child could have been seen on the road before the offending truck hit and crushed him. 18. The offending truck after the accident was mechanically examined by Harfu Ram (PW-6). His unchallenged and undisputed report about such examination is Ext. PW-6/A which reveals that the truck in question had no mechanical defect and was in proper driving ‘condition. The accident, therefore, is not attributable to any mechanical defect in the truck. 19. In case there was any circumstances favourable to the accused, he could have explained it when he had the opportunity to do so in his statement under Section 313, Cr.P.C. The accused did not choose to do so and instead opted to deny even driving of the truck at the relevant time. There cannot be any dispute with the legal position that the accused in his statement under Section 313 Cr.P.C. may answer the questions put to him in the manner he likes may be truthfully or falsely or may even refuse to answer and keep silent. However, it is equally lawful for a court in a proved case to search for any reasonable explanation to the contrary in the statement of the accused and in the absence thereof to draw such inferences as may be permissible in such a situation. The want of explaining the circumstances against him by the accused, leaves no doubt about the truthfulness of the prosecution version. 20. The above discussion and conclusions fully support the concurrent findings recorded by this Courts below. Therefore, the impugned conviction and sentence do not call for any interference by his court. 21. As a result, this petition merits dismissal and is accordingly dismissed. The accused, who is on bail, shall surrender to his bail bonds and appear before the trial court on 4.10.2004 at 10.00. a.m. and the learned trial Magistrate will then commit him to the prison to serve out the sentence of imprisonment awarded to him.