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2012 DIGILAW 252 (HP)

Ravinder Kumar v. State Of Himachal Pradesh

2012-05-04

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. The convict aggrieved by judgment dated 10.11.2005 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in Criminal Appeal No. 3-N/05/03, has filed the revision. The learned Additional Sessions Judge has affirmed the judgment dated 05.07.2003 passed by learned Judicial Magistrate Ist Class, Baijnath, in Criminal Case No. 15-II/ 2000, convicting the petitioner under Sections 279, 304-A IPC and sentencing him to undergo simple imprisonment for three months and fine of Rs. 250/- for offence punishable under Section 279 IPC, simple imprisonment for one year and fine of Rs. 500/- for offence punishable under Section 304-A IPC with default clause. The sentences were ordered to run concurrently. 2. The prosecution case, in brief, is that on 06.02.1999 at about 4.00 p.m., at Chobin Chowk, Baijnath, the petitioner was driving truck HP-38-6082 in rash and negligent manner so as to endanger human life and personal safety of others. The truck hit Balak Ram as a result of which he died on the spot. The accident was caused due to rash and negligent driving of petitioner. The case was registered on the statement under Section 154 Cr.P.C. Ex. PW1/A of Tulsi Ram. 3. On completion of investigation, report under Section 173 Cr.P.C. was filed. The notice of accusation was put to the petitioner for offences punishable under Sections 279, 304-A IPC. He pleaded not guilty and claimed trial. The prosecution has examined 8 witnesses and produced documents. The statement of petitioner was recorded under Section 313 Cr.P.C., he denied the prosecution case. The petitioner led no evidence in defence. On conclusion of trial, the petitioner was convicted and sentenced, as noticed above, by learned Judicial Magistrate. The appeal filed by the petitioner has been dismissed by learned Additional Sessions Judge, hence revision. 4. Heard and perused the record. The learned counsel for the petitioner has submitted that the two Courts below have misconstrued and misinterpreted the evidence on record in convicting and sentencing the petitioner. The prosecution has miserably failed to prove the case. There are material contradictions in the prosecution evidence. The case has not been proved beyond reasonable doubt. The sentence imposed is on the higher side. The learned Assistant Advocate General has supported the impugned judgment. He has submitted that the two Courts below have rightly appreciated the evidence on record. The prosecution has proved the accusation. There are material contradictions in the prosecution evidence. The case has not been proved beyond reasonable doubt. The sentence imposed is on the higher side. The learned Assistant Advocate General has supported the impugned judgment. He has submitted that the two Courts below have rightly appreciated the evidence on record. The prosecution has proved the accusation. In revision the evidence cannot be re appreciated. The view taken by the two Courts below is in consonance with the evidence on record. He has made submission for dismissal of the revision. 5. In order to appreciate the contentions raised in the revision, it is necessary to refer to evidence which has come on record. PW-1 Tulsi Ram has stated that he had been running tea shop at Chobin Chowk. On 06.02.1999 at about 4.00 p.m., truck HP-38-6082 came from Palampur side in high speed and hit Balak Ram. The truck driver tried to run away along with truck but stopped due to the alarm raised by the people. The accused was driving the truck. Balak Ram sustained head injury and died on the spot. The accident took place due to rash and negligent driving of the truck driver. The police recorded his statement Ex.PW1/A. In cross-examination, he denied that at the place of accident there is ascent. He also denied that there is a curve at that place. PW-1 has stated that at that time he was sitting outside his shop. He denied that place of accident was not visible from his shop. He denied that accused is not a driver nor he is having driving licence. 6. PW-2 Jagat Singh has stated that on 06.02.1999 at about 4.00 p.m., truck HP-38-6082 came from Palampur side in high speed. Balak Ram was returning after answering call of nature. The front portion of the truck hit Balak Ram, who fell down and died. The accused was driving the truck. The truck sped away after the accident which was stopped on the alarm raised by the people. The accident took place due to rash and negligent driving of the driver. The truck was taken into possession vide memo Ex. PW2/A which bears his signatures. In cross-examination, he has stated that he has a shop at Chobin Chowk. He was standing outside his shop. He denied that he had not seen the accident. He has stated that case has been instituted for claim. The truck was taken into possession vide memo Ex. PW2/A which bears his signatures. In cross-examination, he has stated that he has a shop at Chobin Chowk. He was standing outside his shop. He denied that he had not seen the accident. He has stated that case has been instituted for claim. He denied that accused was not driving the truck. 7. PW-3 Milap Chand has stated that on 06.02.1999 at about 4.00 p.m., truck HP-38-6082 came from Paprola side in high speed. Balak Ram was standing on the side of the road. The truck hit Balak Ram and Balak Ram fell on the road and died on the spot. The truck driver stopped the truck on next chowk on the alarm raised by them. The accused was driving the truck. The accident took place due to rash and negligent driving of truck driver. In cross-examination, he has stated that he has no shop at the place of accident. The deceased Balak Ram was his father-in-law. He has stated that there is ascent from Binwa bridge to Chobin Chowk. He has stated that case has been filed for claim. He denied that present case has been launched for allowing claim to his mother-in-law and wife. The truck was in high speed. He denied that accused was not driving the truck. 8. PW-4 Ravinder Kumar has proved photographs Ex. P-1 to P-5 and negatives Ex. P-6 to P-10. PW-5 Umesh Bali has stated that on 06.02.1999 he mechanically examined truck HP-38-6082 and prepared report Ex. PW5/A which is signed by him. In the truck no mechanical defect was found. In cross-examination, he has stated that there is ascent and curve at a distance of 25-30 metres from the place where truck was standing. PW-6 LHC Milap Chand has stated that on 06.02.1999 truck HP-38-6082 was taken into possession vide memo Ex. PW2/A. 9. PW-7 H.C. Bhup Singh is the Investigating Officer. He recorded statement under Section 154 Cr.P.C. Ex. PW1/A of Tulsi Ram. He made endorsement Ex.PW7/A and thereafter FIR Ex. PW7/B was registered. The spot map Ex. PW7/D was prepared. Post mortem report Mark-K was obtained. In cross-examination, he has stated that in his investigation it has come that deceased died when he came under rear tyre of the truck. The accused was arrested on 08.02.1999. He denied that petitioner was not driving truck HP-38-6082 on 06.02.1999. PW7/B was registered. The spot map Ex. PW7/D was prepared. Post mortem report Mark-K was obtained. In cross-examination, he has stated that in his investigation it has come that deceased died when he came under rear tyre of the truck. The accused was arrested on 08.02.1999. He denied that petitioner was not driving truck HP-38-6082 on 06.02.1999. PW-8 H.C. Krishan Kumar has stated that FIR Ex.PW7/B was written by him. 10. The petitioner in his statement under Section 313 Cr.P.C. has denied the prosecution case. It emerges from the cross-examination of prosecution witnesses that according to petitioner on the relevant date and time, he was not driving the truck. The truck was loaded. It was going uphill. The place of accident in the evening remains crowded. The petitioner intends to convey that in view of typical location of the place of accident, at the relevant time, it was not possible to drive the loaded truck in high speed. 11. It is the case of the petitioner that on the relevant date and time, he was not driving the truck. He was not even having a driving licence. According to him, he has been falsely implicated in order to claim damages by the family of the deceased. It is not the defence of the petitioner that no accident involving truck HP-38-6082 took place on 06.02.1999. All eye witnesses of the prosecution have stated that Balak Ram died on 06.02.1999 in the accident in which truck HP-38-6082 was involved. Somebody was driving truck HP-38-6082 on the relevant date and time, if petitioner was not driving the truck as claimed by him. It does not sound to logic that for filing the claim petition the family of the deceased would leave the real person, who was driving the truck and falsely implicate the petitioner. The petitioner has not set up the plea of collusion of the family of the deceased for claiming compensation on account of death of deceased with the driver of the truck, who was driving the truck, if petitioner was not driving the truck. There is no force in the contention of the petitioner that he has been implicated in the case by the family of the deceased merely to claim compensation. 12. The next question is whether petitioner, in fact, was driving the truck at the relevant time. There is no force in the contention of the petitioner that he has been implicated in the case by the family of the deceased merely to claim compensation. 12. The next question is whether petitioner, in fact, was driving the truck at the relevant time. PW-1 Tulsi Ram, PW-2 Jagat Singh, PW-3 Milap Chand are the eye witnesses. They have specifically stated that petitioner was driving the truck on the relevant date and time. There is no reason to disbelieve the statements of PW-1, PW-2 and PW-3. It has been proved that on the relevant date and time petitioner was driving the truck HP-38-6082. The next connected question is whether accident took place due to rash and negligent driving of the petitioner. PW-1, PW-2 and PW-3 have stated that accident took place due to rash and negligent driving of the petitioner. PW-5 has mechanically examined the truck and submitted report Ex.PW5/A. He has stated that there was no mechanical defect in the truck. The prosecution witnesses have been cross-examined in order to show that when one comes from Palampur side towards Chobin Chowk there are curves and ascent. PW-1, who has tea shop at Chobin Chowk has denied that at the place of accident there is ascent or there is a curve. PW-3 Milap Chand, however, has stated that there is ascent from Binwa bridge to Chobin Chowk, but gradient of the ascent has not come in the evidence. 13. The learned counsel for the petitioner has stated that the truck was ascending, therefore, there is no question of high speed of the truck. In order to record a finding of rash and negligent driving, speed of the vehicle becomes relevant in the facts and circumstances of the case. In a given situation, a driver of the vehicle who is not driving the vehicle in high speed still be negligent in view of particular situation on the spot. The prosecution witnesses have stated that deceased was on the side of the road where front side of the truck hit him. It has been submitted by learned counsel for the petitioner that PW-7 Investigating Officer has stated that it has come in his investigation that deceased came under the rear tyre of the truck. It has been submitted that prosecution story is suspicious and does not sound to logic. The prosecution case is highly improbable. It has been submitted by learned counsel for the petitioner that PW-7 Investigating Officer has stated that it has come in his investigation that deceased came under the rear tyre of the truck. It has been submitted that prosecution story is suspicious and does not sound to logic. The prosecution case is highly improbable. It has been submitted that when front side of the truck hit the victim, then how it was possible that victim would come under the rear tyre of the truck. 14. The submission made by learned counsel for the petitioner is attractive, but has no merit. It is nobody's case that in photographs exhibits P-1, P-2 and P-3 the person lying on the road is not the dead body of Balak Ram. It appears from photographs exhibits P-1 and P-3 that deceased was hit from the side of head. The head and face of the deceased as per photographs are not crushed. It is not the case of anyone that front centre of the truck hit deceased so that there was no possibility of deceased escaping the crush injury under the front tyres of the truck. It emerges from the prosecution evidence that truck hit the deceased from the front side. The deceased lost his control and fell in the direction with his head towards truck and was hit by the rear tyre of the truck. It has also been held above that petitioner was driving the truck at the relevant time. The defence has given a positive suggestion to PW-1 that petitioner was not having even driving licence to drive the truck. This indicates that petitioner was not efficient in driving the truck and that is why he was not having driving licence, but petitioner took the risk of driving the truck without fully knowing driving. This act of the petitioner in itself is negligent act. 15. The prosecution has proved that petitioner while driving the truck in rash and negligent manner hit Balak Ram on the relevant date and time and due to the injuries sustained by Balak Ram, he died on the spot. It has been proved that Balak Ram died in the accident involving truck HP-38-6082. The two Courts below have rightly appreciated the evidence on record. The view taken by two Courts below is in consonance with the evidence. It has been proved that Balak Ram died in the accident involving truck HP-38-6082. The two Courts below have rightly appreciated the evidence on record. The view taken by two Courts below is in consonance with the evidence. In revision evidence cannot be re appreciated unless the view taken by two Courts below is perverse or suffers from other illegality. The sentence imposed is also not on the higher side in the facts and circumstances of the case. There is no merit in the revision. 16. In view of above, revision fails and is dismissed. The bail bonds of the petitioner are cancelled. The petitioner is directed to surrender immediately to the trial Court to serve out the sentence imposed.