Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1218 (HP)

Rajinder Singh Mehta v. State of H. P.

2014-09-08

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, J. This appeal is instituted against the judgment dated 17.4.2013 of the learned Addl. Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar, H.P., rendered in Case No. 3-AR/7 of 2009/2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences under Sections 279, 337, 338 and 304-AA IPC, was convicted and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further simple imprisonment for a period of one year under Section 304-AA of the IPC. He was further sentenced to undergo simple imprisonment for two months and to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for a period of one month under Section 279 of IPC. He was also sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 250/- and in default to undergo further simple imprisonment for a period of 15 days under Section 337 IPC. All the sentences were ordered to run concurrently. The period of detention undergone by the accused was ordered to be set off under Section 428 Cr.P.C. 2. The case of the prosecution, in a nut shell, is that on 16.4.2009, after the classes were over, Priyanka Thakur alongwith her friends were waiting for bus at Dakolar near Shangrila Hotel by the side of National Highway No. 22. She was a resident of Village and Post Office Nirmand and taking coaching classes in Sigma Institute for PMT and AIEEE. At about 3:40 PM one white coloured Sumo Jeep came from Rampur side at very high speed and hit the students standing by the side of the road. She alongwith Sapna, Usha, Monika, Satish, Anu and Manjula received injuries and Nidhi received serious injuries. The Sumo Jeep after hitting the students hit the hill side on other side of the road. It was driven by the accused. All the injured including Priyanka Thakur, were taken to the hospital. Nidhi succumbed to the injuries on the spot. The police reached the spot at about 3:45 PM. The police recorded the statement of Priyanka Thakur under Section 154 Cr.P.C. She narrated to the police the manner in which the accident has taken place due to the rash and negligent driving of the accused. The FIR was registered. Nidhi succumbed to the injuries on the spot. The police reached the spot at about 3:45 PM. The police recorded the statement of Priyanka Thakur under Section 154 Cr.P.C. She narrated to the police the manner in which the accident has taken place due to the rash and negligent driving of the accused. The FIR was registered. The post mortem of deceased Nidhi was conducted. The other injured were also medically examined at MGMSC Khaneri. The post mortem report was issued by the Medical Officer. The Tata Sumo jeep was taken into possession. The accused was arrested. His blood and urine samples were preserved and sent to FSL, Junga. The vehicle was mechanically inspected. The investigation was completed and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 15 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the case of the prosecution in toto. According to him, he was innocent and falsely implicated in the present case. He has also examined one Raj Kumar as DW-1. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. 4. Mr. B.S. Chauhan, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Neeraj K. Sharma, Dy. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., dated 17.4.2013. 5. I have heard learned counsel for both the sides and gone through the material available on record very carefully. 6. PW-1, Priyanka Thakur deposed that she was taking coaching for PMT examination in Sigma Institute at Dakolar. On 16.4.2009, she alongwith her friends was waiting for bus at Dakolar. At about 3:30 or 3:45 PM, one Sumo vehicle came from Rampur side in a high speed and ran over them causing injuries to her, Anu, Monika, Satish, Sapna, Usha and Manjula. The vehicle hit against the hill side of the road. Nidhi suffered serious injuries. All the injured including herself were taken to MGMSC, Khenari for treatment. Nidhi succumbed to the injuries. At the time of the accident, they were standing on the side of the road. The accident had taken place due to the rash and negligent driving on the part of the driver of the Sumo Jeep. Nidhi suffered serious injuries. All the injured including herself were taken to MGMSC, Khenari for treatment. Nidhi succumbed to the injuries. At the time of the accident, they were standing on the side of the road. The accident had taken place due to the rash and negligent driving on the part of the driver of the Sumo Jeep. The accused was driving the vehicle. In her cross-examination, she denied the suggestion that the stones were lying on the left side and when the driver avoided the stones, they got perplexed. She also reiterated that the vehicle had hit them and thereafter they were dragged and as a result of this, they fell down on the road. The Principal of the Institute had accompanied them from the spot to the hospital. 7. PW-2, Monika also deposed that on 16.4.2009 at about 3:30 or 3:45 PM, after their classes were over, they were waiting for the vehicle by standing on the side of the road. In the meanwhile, one white colour jeep came from Rampur side in a high speed and in an uncontrolled manner hit against them. In this accident 8 or 9 students suffered injury. She also suffered injury. Nidhi had suffered serious injuries and she died on the spot. The accident has taken place on account of rash and negligent driving on the part of the driver of the vehicle. 8. PW-3, Satish Kumar deposed that he was taking coaching in Sigma Institute at Dakolar. On 16.4.2009, at about 3:30 or 3:45 PM, he alongwith other students were waiting for the bus and standing on the side of the road at Dakolar. In the meanwhile, one white colour Sumo came from Rampur side in a high speed and ran over them. In the accident 8-9 students suffered injuries. He also suffered injury. Nidhi suffered grievous injuries and died on the spot. The accident has taken place on account of rash and negligent driving on the part of the driver of the vehicle. The name of the driver of the vehicle was Rajinder Mehta. 9. PW-4, Sapna also deposed the manner in which the accident had taken place at about 3:40 PM on 16.4.2009. According to her, she alongwith other students was waiting for the vehicle and standing on the side of the road at Dakolar. The name of the driver of the vehicle was Rajinder Mehta. 9. PW-4, Sapna also deposed the manner in which the accident had taken place at about 3:40 PM on 16.4.2009. According to her, she alongwith other students was waiting for the vehicle and standing on the side of the road at Dakolar. In the meanwhile, one Sumo jeep came from Rampur side in a fast speed and hit against them causing injuries to 9 or 10 students. After the accident they were moved to Khenari hospital for treatment. Nidhi suffered grievous injuries and died on the spot. The accident has taken place on account of rash and negligent driving on the part of the accused. 10. PW-5, Dr. Hemant Kumar deposed that on 16.4.2009, he was going from Rampur to Bithal in his vehicle. On the way, he stopped at Dakolar near Bansal Tent House and parked his car on the side of the road. After talking to the owner of the Tent House, he came back and boarded his car. As soon as he got into his car the same was hit from behind by some vehicle and his car was dragged for about 10 feet. He came out and found that his car was hit by a Sumo Jeep coming from Rampur towards Dakolar. 11. PW-6, Satya Prakash, is a formal witness. 12. PW-7, Anu Raman deposed that on 16.4.2009 at about 3:45 PM, one white Sumo came from Rampur side in a high speed and came towards their side and hit against Nidhi and others including herself. She also suffered injuries and became unconscious and regained consciousness at hospital Khaneri. She came to know that Nidhi had died as a result of the accident. She denied the suggestion, in her cross examination, that heap of stones was lying on the left side of the road and to avoid that heap, the driver turned his vehicle towards the right side. 13. PW-8, Jia Lal deposed that he was running a scrap shop at Dakolar for the last 6-7 years. About one and a half years back in the afternoon, children of the Coaching Centre were standing on the road to take lift. One Tata Sumo vehicle came from Rampur side and hit against the students and 6-7 students suffered injuries. He alongwith other people present there arranged to send the injured to the hospital. 14. PW-9, Dr. About one and a half years back in the afternoon, children of the Coaching Centre were standing on the road to take lift. One Tata Sumo vehicle came from Rampur side and hit against the students and 6-7 students suffered injuries. He alongwith other people present there arranged to send the injured to the hospital. 14. PW-9, Dr. Rajan Uppal, has examined Ms. Sapna and issued MLC Ext. PW-9/B. He also examined Anu Raman and issued MLC Ext. PW-9/C. He examined Ms. Usha and issued MLC Ext. PW-9/D. He also examined Monika and issued MLC Ext. PW-9/E. He examined Priyanka and issued MLC Ext. PW-9/F. He also examined Manchala Gill and issued MLC Ext. PW-9/G. He also examined Satish Thakur and issued MLC Ext. PW-9/H. He also examined the accused at 6:05 PM. According to his observation, there was smell of alcohol. Blood and urine sample were taken and handed over to the police for chemical examination. The opinion was reserved until the receipt of the report of the Chemical Examiner. He recorded his final opinion that the accused had consumed ethyl alcohol. He had examined him and found that he had taken alcohol but was not under the influence of the alcohol. He issued MLC Ext. PW-9/K. In his cross-examination, he deposed that he did not find accused under the influence of the alcohol. He denied the suggestion that there was some pilferage in taking the sample and thereafter sending the same to the Chemical Examiner. 15. PW-10, Atul Tandon deposed that on 16.4.2009 at about 3:30 or 3:40 PM, he was standing outside his institute at Dhakolar and the students of his institute were standing on the right side of the road going towards Nogli side and were waiting for the Cab. In the meanwhile, one Sumo vehicle of white colour came from Rampur side in a high speed and hit against the hill side on the left side. In the accident, 7-8 students of his institute suffered multiple injuries and out of this, Miss. Nidhi suffered fatal injury and died. The accident took place on account of rash and negligent driving on the part of the driver of the Sumo vehicle. 16. PW-11, HC Sanjeev Kumar has undertaken mechanical examination of the vehicle. He issued report Ext. PW-11/A. According to the report, there was no mechanical defect in the vehicle. 17. Nidhi suffered fatal injury and died. The accident took place on account of rash and negligent driving on the part of the driver of the Sumo vehicle. 16. PW-11, HC Sanjeev Kumar has undertaken mechanical examination of the vehicle. He issued report Ext. PW-11/A. According to the report, there was no mechanical defect in the vehicle. 17. PW-12, A.S.I. Lalit Negi, deposed that he received a telephonic call in Police Station Rampur at about 3:45 PM and after receiving the same, he visited MGMSC Khaneri. He recorded the statement of Priyanka Thakur Ext. PW-1/A under Section 154 Cr.P.C. He prepared the inquest papers. He also moved an application for conducting the post mortem examination on the body of deceased Nidhi. He also moved an application for the medical examination of the other injured students. He took into possession the accidental vehicle. He also recorded the statement of witnesses under Section 161 Cr.P.C. 18. PW-13, Dr. Avinash Sharma conducted the post mortem examination on the dead body of Nidhi. According to him, the cause of death was head injury leading to cardio respiratory arrest. The probable time that elapsed between injury and death was immediate and between death and post mortem was 12 to 36 hours. He issued postmortem report Ext. PW-13/A. 19. Statements of PW-14, S.I. Hari Bhagat and PW-15, Inspector Des Raj are formal in nature. 20. It is duly established by the prosecution on the basis of the statements of PW-1 Priyanka Thakur, PW-2 Monika, PW-3 Satish Kumar, PW-4 Sapna, PW-7 Anu Raman and PW-10 Atul Tandon, that the accident was caused on 16.4.2009, by the accused while driving Tata Sumo in a rash and negligent manner. The students suffered injuries. They were medically examined and PW-9 Dr. Rajan Uppal has issued MLCs. One of the students, namely, Nidhi died in the accident. Her post mortem examination was conducted by PW-13, Dr. Avinash Sharma. According to him, the cause of death was head injury leading to cardio respiratory arrest. The probable time that elapsed between injury and death was immediate and between death and post mortem was 12 to 36 hours. These witnesses have also deposed that the vehicle was driven at a very high speed. The vehicle driven by the accused has also struck against the car of Dr. Hemant Kumar (PW-5) and then struck the other side of the hill. These witnesses have also deposed that the vehicle was driven at a very high speed. The vehicle driven by the accused has also struck against the car of Dr. Hemant Kumar (PW-5) and then struck the other side of the hill. The defence taken by the accused that there was heap of stones lying on the side of the road and when he was trying to overt them, the accident has taken place, has rightly been rejected by the learned trial Court. 21. The accused was medically examined by PW-9 Dr. Rajan Uppal. He has issued M.L.C. Ext. PW-9/K. He has taken the blood and urine samples of the accused. These were sent to FSL, Junga for chemical analysis. According to the FSL report Ext. PW-15/A, ethyl alcohol was detected in the contents of parcels P-1 and P-2, which contained blood and urine of the accused. The content of ethyl alcohol in blood was 135.41 mg% and in urine was 167.90 mg%. According to PW-9 Dr. Rajan Uppal, the accused was smelling alcohol but on chemical examination, he did not find accused under the influence of the alcohol. The accident has taken place at 3:45 PM and the blood samples were taken at 6:05 PM. The quantity of ethyl alcohol found in the blood and urine sample was on very high side. Though the doctor has stated that the accused was not under the influence of the alcohol but his opinion is contrary to the FSL report Ext. PW-15/A. Even, according to Section 185 of the Motor Vehicles Act, 1988, whosoever while driving, or attempting to drive, a motor vehicle, has, in his blood, alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser, would come under the category of drunken person. It can safely be concluded that the accused was driving a public service vehicle in a state of intoxication. The accused has caused hurt while endangering life and personal safety of others by his rash and negligent driving on 16.4.2009. He was driving the vehicle in a rash and negligent manner and thereby endangered the human life. The accident caused by the accused has resulted in death of a very young student aged about 18 years. Other students as well, have suffered serious injuries. 22. Mr. He was driving the vehicle in a rash and negligent manner and thereby endangered the human life. The accident caused by the accused has resulted in death of a very young student aged about 18 years. Other students as well, have suffered serious injuries. 22. Mr. B.S. Chauhan, Advocate, appearing for the accused has vehemently argued that HHC Radhey Shyam, who has taken blood and urine samples to the FSL, Junga has not been examined by the prosecution. No suggestion has been put to the I.O. by the learned counsel for the accused on this aspect. The accident has taken place on 16.4.2009 and the samples were sent to FSL, Junga on 19.4.2009. Mr. B.S. Chauhan, Advocate, has further argued that the prosecution has not explained as to where the samples remained for five days. No suggestion has been put to the I.O. on this aspect also. But, the fact of the matter is that the samples reached the FSL, Junga intact and were chemically examined by FSL, Junga. The ethyl alcohol was detected in the blood and urine test of the accused, as noticed hereinabove. PW-9, Dr. Rajan Uppal has denied the suggestion that the sample was tampered with. There is no merit in the contention of Mr. B.S. Chauhan, Advocate, that sufficient quantity of blood sample was not taken. Since the FSL has analysed the blood and has given its opinion and in case there was lesser quantity of blood, the same could not be analysed. Thus, the quantity of blood sample was sufficient for examination. 23. Accordingly, there is no merit in this appeal, the same is dismissed. The prosecution has proved the case against the accused under Sections 279, 304-AA and 337 IPC. However, taking into consideration that the accused is a young man, being the first offender and the only bread earner of the family, a lenient view can be taken by reducing the sentence from 7 years to 5 years under Section 304-AA of the IPC. The sentences under Section 279 and 337 IPC are not interfered.