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2012 DIGILAW 903 (HP)

Munshi Ram v. State of Himachal Pradesh

2012-11-30

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. : Accused, Munshi Ram has preferred this revision petition in this Court against the judgment dated 12.12.2005 passed by the Presiding Officer, Fast Track Court, Mandi in Criminal Appeal No.7/2004, 13/2005 confirming thereby his conviction and sentence under Sections 279, 337, 338 and 304-A of Indian Penal Code and 181 of the Motor Vehicles Act on the grounds, inter-alia, that neither the ingredients of the offence allegedly committed by the accused are proved on record nor is there any cogent and reliable evidence to show that he was driving the bus involved in the accident in a rash or negligent manner. The witnesses were interested in the success of the prosecution case. The material questions on which he has been convicted were not put to him in his statement recorded under Section 313 Cr.P.C. It is contended that he was having valid driving license and not driving the vehicle in a rash or negligent manner at the time of accident. Also that the driver of the bus being driven ahead, applied its brakes and stopped it at once. He tried to over-take that bus and in this process, the scooter being driven in a rash and negligent manner and coming from opposite side struck against his bus and thus the accident had occurred. 2. On 29.2.1996, injured Virender Kumar (PW-3) was on the way to Sundernagar from his village Chowk, Tehsil Sundernagar, District Mandi on scooter No.HP-31-0799 belonging to his uncle, Nain Singh (PW-7). PW-3 was on the wheel of scooter, whereas, pillion rider was his cousin Ms. Meenakshi. When they reached at a place around 50-60 metres away from Dhanotu Chowk towards Sundernagar side from where in one side road bifurcates to the go-down of gas agency and on the other side to village Jaral, the offending bus bearing registration No.HP-31-3637 being driven by the accused in a rash and negligent manner went out of his control and as a result thereof steered from left to right side, i.e. in wrong side and hit the scooter on katcha portion of the road being driven by PW-3 on extreme left side of the road. The impact of the strike was such that as a result thereof the scooter was damaged badly and PW-3 and Ms. Meenakshi both sustained multiple injuries on their persons. They were removed to Sub-Divisional Hospital, Sundernagar. The impact of the strike was such that as a result thereof the scooter was damaged badly and PW-3 and Ms. Meenakshi both sustained multiple injuries on their persons. They were removed to Sub-Divisional Hospital, Sundernagar. The Medical Officer on duty informed Police Station, Sundernagar over telephone about this accident and the injured brought to hospital for treatment. Consequently, the Investigating Officer, ASI Suram Singh, PW-9 accompanied by other police personnel went to hospital. The injured were not found fit for making statements. Thereafter, he alongwith PW-5, Mohan Singh, Photographer, went to the spot and noticed the bus and scooter involved in the accident lying there. Photographs Ex.PW-5/F to Ex.PW-5/K of the spot were taken. Spot map Ex.PW-9/C was prepared. It is thereafter, rukka Ex.PW-9/B was prepared and sent to police station for registration of F.I.R. The F.I.R. Ex.PW-8/A came to be registered under Sections 279/337 of Indian Penal Code initially. However, in view of the death of Ms. Meenakshi on the way to P.G.I., Chandigarh and further investigation conducted in this case, the accused was found to have committed offence punishable under Sections 338, 304-A of Indian Penal Code and 181 of the Motor Vehicles Act, also. 3. On completion of the investigation, report under Section 173 Cr.P.C. was filed in the Court of Sub Divisional Judicial Magistrate, Sundernagar. 4. Learned trial Magistrate on going through the record found the accused driving the bus in question without driving licence in a manner so rash and negligent so as to endanger human life and personal safety of others and as a result of such rash and negligent driving of the bus, caused the accident in which PW-3 Virender Kumar received injuries grievous in nature, whereas, Ms. Meenakshi scummed to the injuries, she suffered on her person in this accident and prima facie found to have committed an offence punishable under Sections 279, 337, 338 and 304-A of Indian Penal Code and Section 181 of Motor Vehicles Act. 5. In order to sustain the charge against the accused, prosecution has examined 10 witnesses in all. The material prosecution witnesses, however, are PW-1 Shri Pankaj Sharma, owner of the ill fated bus, injured Virender Kumar (PW-3), his uncle Nain Singh (PW-7) and another eye witness Rejinder Kumar (PW-4). 5. In order to sustain the charge against the accused, prosecution has examined 10 witnesses in all. The material prosecution witnesses, however, are PW-1 Shri Pankaj Sharma, owner of the ill fated bus, injured Virender Kumar (PW-3), his uncle Nain Singh (PW-7) and another eye witness Rejinder Kumar (PW-4). The remaining witnesses, i.e. Head Constable Brestu Ram PW-2 had mechanically examined both the vehicles involved in the accident, PW-5 Mohan Singh is a Photographer, who had taken the photographs Ex.PW-5/F to Ex.PW-5/K, PW-6 is Dr. Hari Priya Malhotra, Medical Officer, Sub Divisional Hospital, Sundernagar who had examined both the victims of accident, PW-8 ASI Narain Singh had registered the F.I.R. Ex.PW-8/A on receipt of rukka, PW-10 is Mohinder Singh in whose presence both the vehicle were taken into possession alongwith documents vide memos Ex.PW-9/E and Ex.PW-9/F and the mud-guard of scooter vide memo Ex.PW-9/G and PW-9 ASI Suram Singh the Investigating Officer are formal in nature. 6. On the other hand, accused in his statement recorded under Section 313 Cr.P.C. has denied he being at the wheel of the ill fated bus at the time of accident and also that it is due to rash and negligent driving attributed to him, the accident of scooter No.HP-31-0799 leading in the death of Ms. Meenakshi and injuries on the person of PW-3, had occurred. It is also denied by the accused that he fled away from the spot after the accident. While denying that he was not having a valid driving license, it is stated voluntarily that he was not driving the bus on that day. He, however, opted not to lead any evidence in his defence. 7. I have heard Mr. Pankaj Thakur, Advocate vice counsel for the accused-petitioner and Mr. Rajinder Dogra, Additional Advocate General appearing on behalf of the respondent-State. 8. Accused-petitioner has invoked the revisional jurisdiction of this Court vested in it under Section 397/401 of the Code of Criminal Procedure. 9. True it is that in the exercise of the revisional jurisdiction, this Court is competent to see the legality and propriety of the impugned judgment, however, as per the settled legal principles, the scope of interference with any findings based on facts by the Court below is very limited. 9. True it is that in the exercise of the revisional jurisdiction, this Court is competent to see the legality and propriety of the impugned judgment, however, as per the settled legal principles, the scope of interference with any findings based on facts by the Court below is very limited. No doubt, if the Court below erred in appreciating the evidence and as a result thereof wrong findings came to be recorded, this Court certainly is competent to interfere with the same. 10. The spot map Ex.PW-9/C is most material piece of evidence in this case. The bare perusal of this document makes it crystal clear that the road from Sundernagar to Dhanotu, more particularly, at the place of accident is straight. Being National Highway, the width of pucca portion thereof at the place of accident is 24 feet with 6 feet katcha portion on either sides. While going from Sundernagar to Dhanotu side a vehicle is being driven slightly upward and from Dhanotu to Sundernagar side downward. The offending bus had hit the scooter at point ‘B’ of katcha portion of the road, i.e. extremely on its wrong side. The bus steered from left to right side and hit the scooter leaving in one side 24 feet pucca road. Such being the position of the spot, there cannot be any other and further reason of the accident except for rash and negligent driving on the part of the accused. Although in the grounds of this petition, the stand of the accused is that the brake of another bus being driven ahead was applied and it was stopped all of a sudden. While overtaking the said bus, he steered the same from left to right and in this process, the scooter being driven in a rash and negligent manner struck against the bus and the accident occurred. This, however, was nowhere the plea he raised in his defence before the trial Court. Even in his statement recorded under Section 313 Cr.P.C. also, no such plea has been taken by him in his defence. He rather denied the entire prosecution case being either wrong or for want or knowledge. 11. This, however, was nowhere the plea he raised in his defence before the trial Court. Even in his statement recorded under Section 313 Cr.P.C. also, no such plea has been taken by him in his defence. He rather denied the entire prosecution case being either wrong or for want or knowledge. 11. Now the contentions hereinabove in this petition and also that he was holding the valid driving license and also driving the bus at the time of accident not in a rash and negligent manner, amply demonstrates that he is blowing hot and cold in the same breath. Such contradictory stand itself also demonstrates that the cause of accident was rash and negligent driving attributed to him alone and none else. 12. The photographs Ex.PW-5/F to Ex.PW-5/K taken by Mohan Singh, Photographer (PW-5) make it crystal clear that the offending bus had hit the scooter extremely on wrong side of the road in its katcha portion. The condition of the scooter in photographs, Ex.PW-5/F and Ex.PW-5/G itself speaks in plenty qua the manner in which the accident occurred. The position on the spot as emerges from the perusal of the spot map and the photographs substantiate the findings holding the accused responsible for the accident in question. 13. The ocular version of injured, Virender Kumar (PW-3) substantiates the manner in which the accident occurred beyond all reasonable doubt. His testimony remained un-shattered even in his cross-examination also as the accused failed to elicit anything lending support to his case. There is no reason to disbelieve the testimony of another witness, i.e. PW-4, Rajinder Kumar, who as a matter of fact, has witnessed the accident in view of the testimonies of injured Virender Kumar (PW-3) and Rajinder Kumar (PW4) and also the plea now raised by the accused in this revision petition that he steered the bus from left to right to overtake another bus being stopped all of a sudden ahead of the offending bus, however, had he been cautious and driving the bus in a normal speed keeping in view the condition of the road being straight and 24 feet wide, he could have easily overtaken the another bus and drove the bus safe without causing any harm or endangering threat to the lives and property of others. The circumstances prevailing upon at the spot itself demonstrate that he was not only rash, but negligent also while driving the offending bus. The bus was mechanically fit as is apparent from the testimony of PW-2, Head Constable Brestu Ram, M.T.O., Police Lines, Mandi, who had conducted its mechanical examination and the report Ex.PW-2/A he produced in evidence. The scooter was of PW-7, Nain Singh and being driven by his nephew PW-3 at the time of accident. PW-3, Virender Kumar had the valid driving license. The factum of injuries on the person of PW-3 and deceased Meenakshi though not in dispute, however, otherwise also is fully prove from the medical evidence available on record and also the testimony of Dr. Hari Priya Malhotra, PW-6. The registration of case and the investigation conducted by the investigating agency also stand established from the testimonies of PW-8 ASI Narain Singh and the Investigating Officer, Shri Suram Singh (PW-9). 14. Thus, when the prosecution has satisfactorily proved that the accident which has taken away the life of a young girl (Meenakshi), who as per M.L.C. Ex.P-Y was 18 years of age besides causing injuries including grievous in nature to PW-3, Virender Kumar, had occurred on account of rash and negligent driving on the part of accused, onus stands shifted on the accused to prove otherwise. He, however, miserably failed to do so. He, even in his statement recorded under Section 313 Cr.P.C. also has denied the entire prosecution case being wrong and taken a plea that he was not at the wheel of the offending bus at the time of accident. Now, in this petition, he has however come forward with a version that he was not driving the offending bus in a rash or negligent manner and rather in normal speed and that the accident occurred on account of rash and negligent driving attributed to the person driving the scooter. He was holding the valid driving license as he now submits, cannot also be taken note of at this stage as he has failed to prove any such evidence at an appropriate stage during the course of trial. 15. He was holding the valid driving license as he now submits, cannot also be taken note of at this stage as he has failed to prove any such evidence at an appropriate stage during the course of trial. 15. In view of the evidence available on record and appreciated by both the Courts below in its right perspective, the ingredients of an offence punishable under Sections 279, 337, 338 and 304-A of Indian Penal Code as well as 181 of the Motor Vehicles Act stand satisfactorily proved because the evidence comprising oral as well as documentary leaves no manner of doubt that the accused while at the wheel of the offending bus, was driving the same in a manner so rash or negligent as to endanger human life or personal safety of others and on account of such a rash and negligent act on his part, not only a very valuable human life is taken away by this accident, but also caused grievous injuries to PW-3, Virender Kumar. The contention to the contrary that the findings to this effect recorded by both the courts below are not based upon the evidence nor the ingredients of the offence committed by the accused stand established on record, hardly carry any force. 16. In view of the above while concurring with the findings recorded by both Courts below, I up-hold the conviction and sentence of the accused under Sections 279, 337, 338 and 304-A of Indian Penal Code and 181 of Motor Vehicles Act. 17. The accused has been sentenced to undergo one year’s simple imprisonment and also to pay Rs.1,000/- fine under Section 304-A of Indian Penal Code, whereas for the offence under Section 337 I.P.C. simple imprisonment for a period of three months and to pay a fine of Rs.500/-, under Section 338 I.P.C. simple imprisonment for a period of six months and fine of Rs.500/- and under Section 181 of Motor Vehicles Act, simple imprisonment for a period of one month and a fine of Rs.500/-. 18. 18. In view of the submissions that the accused is a young man and having his family to support coupled with the law laid down by the Apex Court in a recent judgment reported in State of Punjab Versus Balwinder Singh and others, (2012) 2 SCC 182 where in an accident five persons had lost their lives, the Apex Court deemed appropriate to sentence the accused persons to undergo rigorous imprisonment for a period of six months with Rs.5,000/- as fine, I am constrained to take a lenient view in the matter of sentence and deem it appropriate to reduce the sentence under Section 304-A of Indian Penal Code from one year to six months, however with a fine of Rs.5,000/-. The sentence awarded for the commission of offence under Sections 337, 338 of Indian Penal Code and 181 of Motor Vehicles Act however, shall remain as it is. 19. For the foregoing reasons, the sentence under Section 304-A of Indian Penal Code is reduced from simple imprisonment for a period of one year with a fine of Rs.1,000 to rigorous imprisonment for a period of six months with a fine of Rs.5,000/-. The impugned judgment stands modified according to the above extent. 20. The accused is on bail. His personal bond stands cancelled and surety bond discharged. The trial Court is directed to take appropriate steps to execute this order and direct the accused to surrender and serve out the sentence awarded hereby. With the above observations, this revision petition stands finally disposed of. Records be sent down.