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2013 DIGILAW 235 (HP)

PURAN CHAND v. STATE OF HIMACHAL PRADESH

2013-04-04

SANJAY KAROL

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JUDGMENT SANJAY KAROL, J. - 1. ACCUSED - petitioner Puran Chand has been convicted by the Courts below for having committed offences punishable under Sections 279 and 338 of the Indian Penal Code, 1860. 2. ASSAILING the judgment dated 23.2.2001, passed by learned Chief Judicial Magistrate, Kangra at Dharamshala, in Crl. Case No.99-II/1998, titled as State of Himachal Pradesh versus Puran Chand, as affirmed by the learned Additional Sessions Judge-II, Kangra at Dharamshala vide judgment dated 17.10.2006, passed in Criminal Appeal No.29-D/2001, tilted as Puran Chand versus State of Himachal Pradesh, the accused has filed the present Revision Petition under the provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973. Having heard learned counsel for the parties and perused the record, I am of the considered view that the Courts below erred in correctly appreciating the evidence led by the prosecution. Testimonies of the material prosecution witnesses, i.e. Shri Jagdish Chand (PW-1) and Shri Madan Lal (PW-2), have not been correctly and completely appreciated, while returning the findings of guilt of the accused in relation to the aforesaid offences. Their version totally renders the prosecution case to have not been proved beyond reasonable doubt. 3. IN short, case of the prosecution is that on 25.6.1998, accused Puran Chand was driving Bus No.HP-39-1142 in a rash and negligent manner. At about 5.30 p.m., when the Bus reached at village Kalehra, it met with an accident. One boy aged 5-6 years, who was walking on the side of the road, came under the front right side tyre of the Bus. The incident was witnessed by Shri Madan Lal (PW-2) and Shri Jagdish Chand (PW-1) also reached the spot immediately after the occurrence of the incident. Matter was reported to the police and FIR No.154/1998 (Ex. PW-4/A) dated 25.6.1998, under Sections 279 and 338 of the Indian Penal Code, was registered by Inspector Shri Kishan Chand (PW-4) at Police Station Dharamshala. Child was taken to the hospital, where he was examined by Dr. D.P. Swami (PW-6), who issued MLC (Ex. PW-6/A). Police recorded the statements of witnesses and on completion of investigation, presented the Challan in the Court for trial. 4. NOTICE of accusation was put to the accused for having committed offences punishable under Sections 279 and 338 of the Indian Penal Code to which he did not plead guilty and claimed trial. PW-6/A). Police recorded the statements of witnesses and on completion of investigation, presented the Challan in the Court for trial. 4. NOTICE of accusation was put to the accused for having committed offences punishable under Sections 279 and 338 of the Indian Penal Code to which he did not plead guilty and claimed trial. In order to establish its case, prosecution examined as many as eight witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded. 5. AFTER trial, accused was convicted for having committed offences punishable under Sections 279 and 337 of the Indian Penal Code. He was sentenced to undergo simple imprisonment for a period of one month and pay fine of Rs.500/- for having committed offence punishable under Section 279 of the Indian Penal Code and also undergo simple imprisonment for a period of six months and pay fine of Rs.1,000/- for having committed an offence punishable under Section 338 of the Indian Penal Code. In default of payment of fine, to further undergo simple imprisonment for a period of 15 days in relation to both the offences. The lower Appellate Court has affirmed the judgment of conviction and sentence passed by the trial Court. 6. THE fact that the vehicle in question was being driven by the accused cannot be disputed. In any event, it stands established from the testimony of Shri Ravi Chadha (PW-3), who is the proprietor of the vehicle. The fact that accident took place also cannot be disputed. It stands established from the testimony of Shri Jagdish Chand (PW-1) and Shri Madan Lal (PW-2), being independent witnesses. The matter was investigated by Shri Kishan Chand (PW-4), who in the presence of Shri Onkar Singh (PW-5) took possession of the personal belonging and articles of the child from the spot and prepared Memo (Ex.PW-5/A). The fact that the child sustained injuries duly stands proved from the testimony of Dr. D.P. Swami (PW-6), who has deposed that the right foot was crushed with tyre marks and parts of the bone, i.e. tibia and fibula were missing on account of the injury. Also, there was a wound of 7"x3" and blood was oozing out of the same. 7. D.P. Swami (PW-6), who has deposed that the right foot was crushed with tyre marks and parts of the bone, i.e. tibia and fibula were missing on account of the injury. Also, there was a wound of 7"x3" and blood was oozing out of the same. 7. IN order to establish the fact that accused is guilty of crime, prosecution has to prove, beyond reasonable doubt, the fact that at the time of the occurrence of the incident/ accident, accused was driving the Bus in question in a rash and negligent manner so as to endanger human life or that the bus was being driven in a manner which in all likelihood would cause hurt or injury to any person or the fact that while driving the Bus in a rash and negligent manner the accused caused grievous hurt and injury to the child, i.e. Master Sandip. 8. NOW to establish these ingredients, prosecution has relied upon the testimonies of two, out of eight witnesses. Shri Jagdish Chand (PW-1) is a shopkeeper. His shop is just at a distance of ten feet from the place where the incident occurred. Now significantly, this witness in no uncertain terms has deposed that he reached the spot only after the occurrence of the incident. He does not categorically state that the incident occurred on account of the rash and negligent act of the driver. He does not state that the Bus was being driven in a rash and negligent manner at a high speed. All that he states is that he heard cries of children and when he stepped out of his shop, he saw a foot of the child under the tyre of the bus. 9. IN order to establish the guilt of the accused, the Courts below have essentially referred to and relied upon the testimony of Shri Madan Lal (PW-2). Now, in my considered view, it is here that they have seriously erred in correctly appreciating his testimony. It has resulted into perversity and travesty of justice. This witness simply states that after the passengers alighted from the Bus, the Bus moved further and after it had covered a distance of 25 feet, he saw that a foot of a child had come under the front tyre of the right side of the Bus. He immediately rushed to the spot. This witness simply states that after the passengers alighted from the Bus, the Bus moved further and after it had covered a distance of 25 feet, he saw that a foot of a child had come under the front tyre of the right side of the Bus. He immediately rushed to the spot. Now significantly even this witness does not state that the Bus was being driven by the accused in a rash and negligent manner. In fact, he states that it "seems" that the driver "may be at fault". He categorically does not state that the driver was at fault. In cross-examination, which is unrebutted, he states that at the time when the accident took place his head was towards the opposite direction. Now, if this was so then he has not witnessed the occurrence of the actual accident. More significantly, he states that the driver was present on the spot, which only reflects the conduct of the accused. 10. RECORD reveals that the driver had taken the child to the hospital alongwith other persons. He did not flee from the spot. In my considered view, none of the spot witnesses have been able to bring home the guilt of the accused, beyond reasonable doubt, which is a cardinal principle of criminal jurisprudence. Investigating Officer has placed on record photographs from which also it cannot be said that in fact the driver was at fault. Accident took place in the middle of the road and who was at fault at the relevant time cannot be said with certainty. 11. HENCE, for all the aforesaid reasons, present Revision Petition is allowed. Judgments of conviction and sentence passed by the Courts below are set aside and the accused is acquitted of the charged offences. His bail bonds are discharged. Revision petition stands disposed of, so also the pending application, if any. Petition is allowed.