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2012 DIGILAW 523 (HP)

Ramesh Chand v. State of H. P

2012-09-10

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, J. The petitioner has suffered conviction in both the Courts below under Sections 279, 337, 338 IPC, he has assailed judgment dated 21.2.2005 passed by learned Sessions Judge, Hamirpur in Criminal Appeal No. 06 of 2004 affirming judgment dated 3.6.2004 passed by learned Judicial Magistrate 1st Class, Barsar in case No. 44-1 of 2004/45-II-2003. 2. The prosecution case in brief is that on 23.3.2004 PW-10 ASI Raj Kumar alongwith PW-8 H.C. Anil Kumar received information that accident had taken place, they reached Chakmoh. The statement Ex.PW-1/A of PW-1 Malu Ram under Section 154 Cr.P.C. was recorded. PW-1 stated that he was driver of Gypsy bearing No. HP-22-0029 and was on duty with Sub Divisional Police Officer, Barsar, PW-9 P.N. Banyal on 23.3.2003. They were coming from Deotsidh temple and were going to Chakmoh. At about 2.p.m. one kilometer from Chakmoh near Jaralmod a bus bearing No. HP-39-5685 came from the opposite side which was being driven in rash and negligent manner by the petitioner. PW-1 turned his Gypsy on the left side berm of the road but bus hit the Gypsy. 3. PW-1 further stated that on account of accident, the right side of the Gypsy was damaged and the occupants of the Gypsy sustained injuries. The accident took place due to rash and negligent driving of the petitioner. The rukka was sent to the Police Station, thereupon FIR Ex.PW-6/A was registered. The medical examinations of the injured were got conducted. The vehicles were subjected to mechanical examination. The spot map was prepared. The injuries sustained by Jaswant Singh were grievous. On completion of investigation, the challan was submitted in the Court. 4. The notice of accusation was put to the petitioner, who pleaded not guilty and claimed trial. The prosecution examined 11 witnesses and produced some documents. The statement of petitioner was recorded under Section 313 Cr.P.C. He denied the prosecution case but led no evidence in defence. On conclusion of trial, learned Magistrate on 3.6.2004 convicted the petitioner for offences punishable under Sections 279, 337, 338 IPC and sentenced him under Section 279 IPC simple imprisonment for six months and fine of Rs.1000/-, under Section 337 IPC simple imprisonment for six months and fine of Rs.500/-, under Section 338 IPC, simple imprisonment for six months and fine of Rs.1000/-with default clauses. The sentences were ordered to run concurrently. The sentences were ordered to run concurrently. The appeal filed by the petitioner has been dismissed by learned Sessions Judge, Hamirpur on 21.2.2005, hence revision. 5. I have heard Mr. Ajay Sharma, learned counsel for the petitioner and learned Additional Advocate General for the respondent and have also gone through the record. The learned counsel for the petitioner has submitted that the two Courts below have erred in convicting and sentencing the petitioner, the evidence has been misinterpreted. The inference drawn from the evidence is wrong. Only interested witnesses were examined by prosecution, no person from the bus was associated in the investigation nor examined in the Court. The sentence imposed is excessive. The submission has been made for acceptance of the revision. 6. The learned Additional Advocate General while supporting the impugned judgment has submitted that the two Courts below on appreciation of evidence have recorded concurrent findings of facts. The evidence is not to be re-appreciated in revision, she has submitted that there is no misinterpretation of evidence. The view taken by the two Courts below emerges from the evidence. She has submitted for dismissal of the revision. 7. PW-1 Malu Ram has stated that he was driving gypsy HP-22-0029 on 23.3.2003 and Dy.S.P. Banyal, gunman Jaswant Singh and Ravinder were also in the gypsy. At about 2.10 p.m. they were one kilometer ahead Chakmoh towards Bijhar, New Prem Bus No. HP-39-5685 came from opposite side in high speed and on seeing the bus, he turned gypsy on the berm of the road. The bus driver did not apply the brakes nor he could control the bus and hit the right side of the gypsy which was pushed 5-6 feet backwards. He, Dy.S.P. and gunman sustained injuries, the right side of the gypsy was badly damaged. The petitioner was driving the bus, the accident took place due to negligence of the petitioner. ASI recorded his statement Ex.PW-1/A. In cross-examination, he has stated that at the place of accident, there is no blind curve, the vehicle coming from opposite side was visible. The bus hit the driver side window and mudguard. He denied that after hitting the bus, the gypsy came over berm. Ravinder also sustained injuries. At the time of the accident, no other person was on the spot. 8. The bus hit the driver side window and mudguard. He denied that after hitting the bus, the gypsy came over berm. Ravinder also sustained injuries. At the time of the accident, no other person was on the spot. 8. PW-2 Amar Nath is a witness to the recovery of bus No.HP-39-5685, through recovery memo Ex.PW-2/A. In cross-examination, he has stated that his shop is at a distance of 200 yards, there is a U-turn on the spot. He denied that the road is narrow. PW-3 Joginder Singh has proved photographs Ex.PW-3/A, Ex.PW-3/B, Ex.PW-3/C, Ex.PW-3/D and negatives Ex.PW-3/E, Ex.PW-3/F, Ex.PW-3/G Ex.PW-3/H. In cross-examination he has stated that on both sides there was space, there is U-turn. 9. PW-4 is Ravinder Kumar. He has stated that he was in the vehicle which was being driven by Malu Ram. At a place behind College, Prem bus came in high speed and accident took place. Dy.S.P., Malu Ram and Jaswant Singh sustained injuries. Gypsy driver was driving the vehicle properly whereas the bus driver was in high speed which caused the accident. In cross-examination, he has stated that there were 40-42 passengers in the bus. He does not know the speed of the bus. He admitted the suggestion that the bus hit the bumper of the gypsy and due to the impact the gypsy was pushed back 10 feet. There is a U-turn on the spot. 10. PW-5 HHC Ranjeet Singh has stated that he mechanically examined bus No. HP-39-5685 and prepared report Ex.PW-5/A. PW-6 Sushil Kumar has recorded FIR Ex.PW-6/A. PW-7 Jagmohan Singh has stated that he mechanically examined gypsy No.HP-22-0029 on 27.3.2003 and prepared report Ex.PW-7/A. In cross-examination, he has stated that he does not know the condition of the vehicle before the accident. PW-8 HC Anil Kumar is a witness of recovery memo Ex.PW-1/B of gypsy No. HP-22-0029. 11. PW-9 P.N.Banyal, Dy.S.P. has stated that in the year 2003 he was posted as Dy.S.P. Barsar. On 23.3.2003 he was returning from Deotsidh to Barsar via Bijhri alongwith HHC Yashwant Singh, driver Malu Ram and Ravinder Kumar in gypsy No. HP-22-0029. At about 2.10 p.m. bus No. HP-39-5685 came from Bijhri side in high speed, on seeing the bus, Malu Ram turned the gypsy on the berm but bus driver could not control the bus and hit the gypsy. The occupants of the gypsy sustained injuries. The gypsy also suffered damage. At about 2.10 p.m. bus No. HP-39-5685 came from Bijhri side in high speed, on seeing the bus, Malu Ram turned the gypsy on the berm but bus driver could not control the bus and hit the gypsy. The occupants of the gypsy sustained injuries. The gypsy also suffered damage. The accident took place due to negligence of the bus driver. He denied that the petitioner has been falsely implicated in the case. 12. PW-10 Raj Kumar, S.I. has stated that in the year 2003, he was posted Incharge, Police Post, Deotsidh. On receiving the information of accident on 23.3.2003, he reached the spot. The statement of Malu Ram under Section 154 Cr.P.C. Ex.PW-1/A was recorded. The spot map Ex.PW-10/B was prepared. On completion of investigation, the file was handed over to S.I. He has denied that since police department vehicle was involved in the accident, therefore, petitioner has been falsely implicated in the case. PW-11 Dr. D.D.Rana on 23.3.2003 examined the persons sitting in the gypsy and injured in the accident and issued MLCs Ex.PW-11/A, Ex.PW-11/B and Ex.PW-11/C. The petitioner in his statement under Section 313 Cr.P.C. has denied the prosecution case. 13. Ex.PW-1/A is the statement under Section 154 Cr.P.C. of Malu Ram. Ex.PW-6/A is FIR. The spot map is Ex.PW-10/B. The mechanical report of gypsy No. HP-22-0029 is Ex.PW-7/A and mechanical report of bus No. HP-39-5685 is Ex.PW-5/A. The photographs are Ex.PW-3/A, Ex.PW-3/B, Ex.PW-3/C, Ex.PW-3/D and negatives are Ex.PW-3/E, Ex.PW-3/F, Ex.PW-3/G, Ex.PW-3/H. The MLCs of the injured are Ex.PW-11/A, Ex.PW-11/B and Ex. PW-11/C. 14. PW-1 Malu Ram, PW-4 Ravinder Kumar and PW-9 P.N.Banyal have stated that petitioner was driving the bus No. HP-39-5685 in high speed. He did not apply brakes nor he could control the bus, even thoughPW-1 Malu Ram had turned the gypsy on berm of the road on seeing the bus. The bus hit the driver side door and mudguard of the gypsy and caused extensive damage to the gypsy. The accident was caused due to the negligence of the petitioner. The occupants of the gypsy sustained injuries as noticed in MLCs Ex.PW-11/A, Ex.PW-11/B and Ex.PW-11/C proved by PW-11 Dr. D.D.Rana. 15. The defence has given suggestion to PW-4 Ravinder Kumar which he admitted that the bus hit the bumper of the gypsy and due to the impact, gypsy was pushed backwards 10 feet. The occupants of the gypsy sustained injuries as noticed in MLCs Ex.PW-11/A, Ex.PW-11/B and Ex.PW-11/C proved by PW-11 Dr. D.D.Rana. 15. The defence has given suggestion to PW-4 Ravinder Kumar which he admitted that the bus hit the bumper of the gypsy and due to the impact, gypsy was pushed backwards 10 feet. This suggestion put to PW4 indicates that even it was the case of the petitioner that the bus hit the gypsy with such impact which pushed the gypsy 10 feet backwards. PW-2 Amar Nath, PW-3 Joginder Singh and PW-4 Ravinder Kumar have stated that there is a U-turn on the spot. On hilly roads U-turns are not uncommon, the driver on U-turn is expected to be more careful. 16. It has been contended that no independent witness was joined in the investigation and examined in the Court by the prosecution. PW-1 has stated that at the time of the accident, no other person was on the spot. It is not the case of defence that accident took place at a place where there were houses and shops. PW-2 witness of recovery of bus has stated that his shop is at a distance of 200 yards. He denied that the road is narrow. It has been contended on behalf of the petitioner that no witness from the bus was joined in the investigation. It has not come in the investigation that when police reached the spot any bus passenger was available. The bus passengers were not expected to stay back on the spot indefinitely when the bus met with an accident. Therefore, not joining of the passengers of the bus as witnesses during investigation is inconsequential when the witnesses examined by the prosecution have proved the case. 17. It has been submitted that the material witnesses are from police department, but this is no ground to discard their evidence only on the ground that they belonged to police department. PW-1, PW-4 and PW-9 are the natural witnesses, they were in the gypsy at the time of the accident. In Paras Ram vs. State of Haryana (1992) 4 SCC 662 , the Supreme Court has held that the evidence relied upon was of two police officials does not ipso facto give rise to doubt about its credibility. PW-1, PW-4 and PW-9 are the natural witnesses, they were in the gypsy at the time of the accident. In Paras Ram vs. State of Haryana (1992) 4 SCC 662 , the Supreme Court has held that the evidence relied upon was of two police officials does not ipso facto give rise to doubt about its credibility. There is nothing on record to show that these police officials were hostile to the appellant and their evidence was not shaken in cross-examination. That the private party who was called as a witness by the prosecution did not support it does not, in the circumstances, lead to the conclusion that the appellant was innocent. 18. The Supreme Court in Tahir vs. State (Delhi) (1996) 3 SCC 338 held that where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. 19. The Supreme Court in State of Gujarat vs. Anirudhsing and another (1997) 6 SCC 514 has held that PW-4, PW-58 and PW-46 merely because they are police officials, their evidence cannot and must not be rejected outright as unreliable or unworthy of acceptance. It requires to be subjected to careful evaluation like any other witness of occurrence. PW-1 Malu Ram, PW-4 Ravinder Kumar and PW-9 P.N.Banyal have been cross-examined by the defence but nothing favourable to the defence has come out in their testimonies. These witnesses have stated that the accident has taken place due to rash and negligent act of the petitioner. 20. In mechanical report Ex.PW-5/A of the bus and Ex.PW-7/A of gypsy, no mechanical defect was found. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 it has been held that revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. 20. In mechanical report Ex.PW-5/A of the bus and Ex.PW-7/A of gypsy, no mechanical defect was found. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 it has been held that revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. 21. The two Courts below have meticulously examined the evidence, the view taken by them emerges from the evidence on record. Therefore, no fault can be found with the conviction of petitioner under Sections 279, 337 and 338 IPC. The conviction of petitioner under Section 279, 337, 338 IPC is upheld. The learned counsel for the petitioner has submitted that lenient view may be taken.The petitioner has already suffered agony of trial thereafter appeal and revision for the last more than eight years. He has relied State of Himachal Pradesh vs. Baljit Singh 2011 (3) Him. L.R. 1463 where trial Court had convicted the respondent and sentenced him to undergo the imprisonment for a period of one month and to pay a fine of Rs. 500/- under Section 279 IPC, simple imprisonment for a period of three months and to pay a fine of Rs. 1000/ - for the offence under Section 337 IPC with default clauses. The respondent was acquitted by the learned Additional Sessions Judge but High Court convicted the respondent. The High Court rejected the plea of respondent to grant him probation and sentenced him to pay a fine of 5000/- only for the offence punishable under Section 337 IPC, in default to undergo simple imprisonment for a period of one month without imposing any sentence under Section 279 IPC keeping in view the long time. 22. In the present case also the accident took place on 23.3.2003. The petitioner in his affidavit dated 4.3.2005 has given his age 43 years, therefore, now he is 50 years of age. 22. In the present case also the accident took place on 23.3.2003. The petitioner in his affidavit dated 4.3.2005 has given his age 43 years, therefore, now he is 50 years of age. The substantive sentence of imprisonment to petitioner now will be very harsh, it will affect the family of the petitioner also. In the facts and circumstances, the ends of justice will be met in case the sentence imposed by the trial Court and affirmed by the learned lower Appellate Court is modified. Accordingly, the petitioner/ accused is sentenced to pay a fine of Rs. 3000/- under Section 279 IPC, Rs. 4,000/- under Section 337 IPC and Rs. 5,000/- under Section 338 IPC. In default of payment of fine to undergo simple imprisonment on each count for one month. The fine be deposited in the trial Court within a period of two months. The fine, if any, already deposited by the petitioner will be adjusted. The revision is disposed of on above terms.