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2012 DIGILAW 115 (HP)

Jagdish v. State of H. P.

2012-03-21

KULDIP SINGH

body2012
JUDGEMENT Kuldip Singh, Judge. This revision is directed against the judgement dated 23.5.2006 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 10 of 2004 affirming the judgement dated 30.7.2004/ 31.7.2004 passed by learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, Mandi, H.P. in police challan No. 119- 1/2001 (1999)/ 172-II/2000. 2. The prosecution case in brief is that PW-2 Ramesh Kumar boarded bus No. HP-33-2147 of Chaudhary Bus Service on 12.4.1998. There were other passengers also in the bus. The driver of the bus got down at place Chail Chowk. In the meantime, Himachal Road Transport Corporation (HRTC) bus Gohar to Shimla came from the side of Gohar. On this the petitioner at once sat in the driver seat and started the bus in high speed towards Ner Chowk. The petitioner at place Kainchi Mor lost control of the bus while negotiating a curve and bus rolled down. The complainant and other passengers travelling in the bus sustained multiple injuries. The accident took place at 8.00 a.m. The injured were taken to hospital. 3. The further case of the prosecution is that accident took place due to rash and negligent driving of the bus. The statement of complainant under section 154 Cr.P.C. Ex. PW 2/A was recorded and thereupon FIR Ex. PW 15/A was registered. It has come in the investigation that Hem Singh, Bhagat Ram, Param Dev died in the accident and several other passengers sustained injuries. The MLCs of the injured and post mortem reports of the deceased were obtained. The mechanical report Ex. PW 10/A of the bus was obtained. On completion of investigation, report under section 173 Cr.P.C. was submitted. 4. The notice of accusation was put to petitioner for offence under sections 279, 337, 338 and 304-A IPC. The petitioner pleaded not guilty. The prosecution has examined 17 PWs and produced several documents. The statement of petitioner was recorded under section 313 Cr.P.C. He led no evidence in defence. 4. The notice of accusation was put to petitioner for offence under sections 279, 337, 338 and 304-A IPC. The petitioner pleaded not guilty. The prosecution has examined 17 PWs and produced several documents. The statement of petitioner was recorded under section 313 Cr.P.C. He led no evidence in defence. On conclusion of trial, the learned Sub Divisional Judicial Magistrate convicted the petitioner on 30.7.2004 and on 31.7.2004 sentenced the petitioner simple imprisonment for a period of three months and fine of 1500/- under section 279 IPC, simple imprisonment for a period of three months and fine of 1500/- under section 337 IPC, simple imprisonment for a period of six months and fine of !500/- under section 338 IPC, simple imprisonment for a period of one year and fine of !1000/- under section 304 A IPC with default clauses. The learned Addl. Sessions Judge dismissed the appeal on 23.5.2006, hence revision. 5. I have heard Mr. M.S. Guleria, Advocate, learnedcounsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General and have also gone through the record. It has been submitted on behalf of the petitioner that two courts below have misconstrued, misinterpreted the material on record and have erred in convicting and sentencing the petitioner. The accident took place not because of rash or negligent driving of the driver but due to mechanical brake down of the bus. High speed in itself is not an offence unless it is coupled with rash and negligent driving. The petitioner right from very beginning has taken the defence that accident took place due to mechanical brake down and not because of negligence or rashness on the part of the driver. It has been submitted that defence of the petitioner is proved by the prosecution witnesses. PW 4 has stated that he heard the sound of thud and immediately thereafter the bus rolled down. This witness was not declared hostile by the prosecution and, therefore, statement of PW 4 is binding on the prosecution. The other prosecution witnesses have also stated that petitioner was driving the bus in normal speed. The submission has been made for acceptance of revision and setting aside the conviction and sentence of the petitioner. 6. The learned Assistant Advocate General has supported the impugned judgement. He has submitted that two courts below have concurrently recorded findings of facts against the petitioner. The submission has been made for acceptance of revision and setting aside the conviction and sentence of the petitioner. 6. The learned Assistant Advocate General has supported the impugned judgement. He has submitted that two courts below have concurrently recorded findings of facts against the petitioner. The evidence in revision cannot be re-appreciated. The statement of PW 4 nowhere supports the case of the petitioner. In the accident three persons died and several injured. The view taken by two courts below emerges from the record. He has prayed for dismissal of the revision. 7. In order to appreciate the contentions on either side, it is necessary to refer to the evidence which has come on record. PW 1 Vikram Dass has stated that he has identified deceased Parma Nand, who died in the accident. The bus was taken into possession vide memo Ex. PW 1/A. The broken pieces of glass and some other parts of the bus were taken into possession vide memo Ex. PW 1/B. He is not an eye witness of the accident. 8. PW 2 Ramesh Kumar was a passenger in bus HP-33- 2147. He has stated that on account of competition in between HRTC bus and Chaudhary bus, the driver of the Chaudhary Bus Service was driving the vehicle in high speed. At a place about two kilometers from Chail Chowk the driver of Chaudhary Bus Service could not negotiate the curve on account of high speed and bus rolled down. In the bus, there were 20-22 passengers and he was one of them. He sustained several injuries in the accident. He did not hear any sound at the place of accident as he became unconscious. He has denied that before the accident sound of some broken part had come. 9. PW 3 Padam Singh has stated that he boarded Chaudhary Bus Service at place Sala and was going to Ner Chowk. The Chaudhary bus service before Kainchi Mor rolled down towards Baggi side. He just boarded the bus and sustained injuries on the head and arm. The bus was in proper speed. He was declared hostile and cross-examined by the prosecutor. In the cross- examination conducted by defence, he has stated that before the accident, he did not hear the sound of breaking of any part of the bus. 10. He just boarded the bus and sustained injuries on the head and arm. The bus was in proper speed. He was declared hostile and cross-examined by the prosecutor. In the cross- examination conducted by defence, he has stated that before the accident, he did not hear the sound of breaking of any part of the bus. 10. PW 4 Balbir Singh has stated that on 12.4.1998, he had boarded Chaudhary Bus service and was going from Chail Chowk to Ner Chowk. The bus was going in high speed. At place Piplu near Kainchi Mor, there was thud sound and bus rolled down in the Nallaha. He was sitting in the bus and sustained injuries. The accident took place due to high speed of the bus. In cross- examination, he has stated that after thud sound he became unconscious. PW 5 Kanhaiya Lal is a witness of recovery and therefore is not a material witness. Dila Ram is PW 6 but he has been wrongly given number as PW 5. He has stated that he was travelling in the bus of the petitioner from Chail Chowk to Mandi. The bus rolled down ahead of Chail Chowk and he also sustained injuries. The bus was in proper speed. In cross-examination, he has stated that bus was not in high speed. 11. PW 6 Dhani Ram has stated that on 12.4.1998 he was travelling in Chaudhary Bus Service, which met with an accident ahead of Kainchi Mor. He sustained several injuries. The bus was not in high speed. He was declared hostile. In cross-examination, conducted by the prosecutor he has stated that petitioner was driving the bus. He denied that in order to save the petitioner, he has given wrong statement. PW 7 Naresh a passenger of Chaudhary Bus Service has stated that in the accident he, his wife and daughter sustained injuries, but he does not know how the accident took place. PW 8 and PW 9 are the doctors. In view of admitted position that some persons sustained injuries and some died in the accident, the statements of PW 8 and PW 9 are not material. 12 PW 10 Brestu Ram inspected bus No. HP-33-2147 on 12.4.1998 and prepared report Ex. PW 10/A. In cross-examination, he has stated that he went to the spot on the same day, but cannot say how accident took place. PW 11 Dr. 12 PW 10 Brestu Ram inspected bus No. HP-33-2147 on 12.4.1998 and prepared report Ex. PW 10/A. In cross-examination, he has stated that he went to the spot on the same day, but cannot say how accident took place. PW 11 Dr. R.S. Dhatwalia again is not a material witness in view of admitted position that some passengers of the bus sustained injuries in the accident and some died. PW 12 constable Chuhar Singh has proved photographs Ex. PW 12/1 to Ex. PW 12/22 and negatives Ex. PW 12/23 to Ex. PW 12/28. PW 13 Naginder has stated that he was travelling in Chaudhary Bus Service on 12.4.1998. The bus went of the road before Piplu. He sustained injuries in the accident, two or three persons died. The bus was in high speed. The accident took place due to rash and negligent driving of the bus driver. In cross-examination, he has stated that he did not file any claim petition. He denied the suggestion that bus was in slow speed. 13. PW 14 Kusum has stated that on 12.4.1998, she was going to Mandi alongwith her husband in Chaudhary Bus Service. The bus rolled down near Piplu. She and her husband sustained injuries in the accident. The driver was driving the bus in high speed as a result of which accident took place. Two persons died on the spot in the accident and one in the hospital. In cross-examination, she has denied the suggestion that bus driver was driving the bus in slow speed. 14. PW 15 ASI Harish Chand has proved FIR Ex. PW 5/A. PW 16 Dilu Ram is the investigating officer. He has stated that on 12.4.1998 at about 7.45 p.m., a telephonic information was received in the police station that ahead of Chail Chowk near Kainchi Mor a bus met with an accident. It was found that bus No. HP-33-2147 met with an accident and rolled down 150 feet down. One person Parma Nand was found dead in the accident and several passengers were injured . The photographs were taken on the spot. The spot map Ex. PW16/A was prepared. He conducted the investigation and submitted the file to S.H.O. In cross-examination, he has stated that there are curves on the spot, but road was not narrow. He has denied that bus speed was slow. The photographs were taken on the spot. The spot map Ex. PW16/A was prepared. He conducted the investigation and submitted the file to S.H.O. In cross-examination, he has stated that there are curves on the spot, but road was not narrow. He has denied that bus speed was slow. He has denied that it has come in investigation that there was sound of breaking of driver side patta before the accident. In the statement, under section 313 Cr.P.C. the petitioner has stated that accident took place due to mechanical defect. But in the statement, he has not specified the mechanical fault/ defect. 15. PW 2, PW 4, PW 13 and PW 14 passengers of the bus have stated that at the time of accident the bus was in high speed and accident took place due to the negligence of the petitioner. PW 3 was declared hostile. He has stated that he did not hear the sound of breaking of any part of the bus. PW 5 and PW 6 have stated that bus was not in high speed. PW 6 was declared hostile. PW 5 has stated that bus was in proper speed and it rolled down. PW 7 has stated that he does not know how the accident took place. There is overwhelming evidence on record that accident took place due to high speed of the bus and negligent driving of driver. The witnesses who have said that bus was not in high speed have stated that bus was being driven by the petitioner and it rolled down. It is for the petitioner to explain how bus rolled down and went of the road. 16. The defence of the petitioner is that right side patta of the bus broke down as a result of which bus rolled down. PW 3 was declared hostile but even this witness has stated that he did not hear the sound of breaking of any part of the bus. The learned counsel for the petitioner has stressed that PW 4 has stated that there was thud sound and bus rolled down in the Nallaha. It has been submitted that PW 4 was not declared hostile. The learned counsel for the petitioner has stressed that PW 4 has stated that there was thud sound and bus rolled down in the Nallaha. It has been submitted that PW 4 was not declared hostile. The statement of PW 4 binds the prosecution in view of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi) (2005)5 SCC 258, where the Supreme Court has held that Ved Parkash Goel did not support the prosecution, he was never declared hostile and his evidence did not support the prosecution. Instead it supported the defence. The accused hence can rely on that evidence. The Supreme Court also noticed Raja Ram vs. State of Rajasthan (2005)5 SCC 272. 17. PW 4 in his cross-examination has stated that after thud sound, he became unconscious. In other words the thud sound heard by PW 4 was of the impact of the bus when it fell while rolling down. The thud sound referred by PW 4 in his examination-in-chief is not the sound of broken patta before bus rolled down. The entire statement of PW 4 is to be considered. He has supported prosecution. It was not necessary to declare him hostile. Therefore, on facts Mukhtiar Ahmed Ansari (supra) in so far as present case is concerned is distinguishable. PW 10 has proved mechanical report Ex. PW 10/A of the bus. This witness has not been cross-examined on the point that right side patta of the bus had broken before the accident. It does not emerge from the evidence on record that accident took place due to breaking of right side patta of the bus. On the contrary, there is cogent evidence on record that accident has taken place due to rash and negligent driving of the driver. 18. The learned counsel for the petitioner to some extent is right that mere high speed is not enough to record a finding that driver was negligent. The speed of the vehicle is a relative term. It depends upon the situation, condition of road and place where the vehicle is being driven. In the present case, it has come on record that there was a competition between ill-fated bus and other HRTC bus. It is reasonable to infer that in view of competition, the petitioner was driving the vehicle in high speed ignoring that he was plying the vehicle on hilly road having sharp and hair pin curves. In the present case, it has come on record that there was a competition between ill-fated bus and other HRTC bus. It is reasonable to infer that in view of competition, the petitioner was driving the vehicle in high speed ignoring that he was plying the vehicle on hilly road having sharp and hair pin curves. The accident took place at Kainchi Mor, which is always a sharp curve. In the accident, several passengers were injured and three died. Some of the injured passengers were examined as witnesses by the prosecution and they have supported the prosecution case. The petitioner in his statement, under section 313 Cr.P.C. has stated that accident took place due to mechanical fault/ defect. He has not identified the mechanical fault/ defect. He has certainly not stated that accident took place due to breaking of right side patta of the bus . The courts below have rightly appreciated the evidence on record. There is no misconstruction, misinterpretation of evidence. In revision, re-appreciation of evidence is not possible unless the view taken by the courts below is perverse or suffers from an illegality based upon consideration of inadmissible evidence or ignoring the evidence which goes to root of the case. But the present case does not suffer from any such illegality. The sentence imposed is also not on higher side keeping in view the nature of accident and persons involved in the accident. There is no merit in the revision. 19. As a result of above discussion, the revision fails and is accordingly dismissed. The bail bonds of the petitioner are cancelled and he is directed to surrender to serve out the sentence imposed.