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Himachal Pradesh High Court · body

2014 DIGILAW 52 (HP)

Anil Kumar v. State of H. P.

2014-01-08

RAJIV SHARMA

body2014
JUDGMENT Per Rajiv Sharma, Judge. This revision petition is directed against the judgment dated 7.1.2013 passed by learned Sessions Judge, Kangra at Dharamshala, H.P. in Cr. Appeal No. 28-B/X/2007, whereby the appeal filed by the petitioner against the judgment dated 13.9.2007 passed by learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, in Criminal Case No.105-II/2006 has been dismissed. 2 “Key facts” necessary for the adjudication of this petition are that on 29.6.2006 at about 5.45 A.M., a telephonic message was received at Police Station Baijnath from Sub Divisional Hospital, Baijnath that two persons received injuries in an accident and were admitted in the hospital. The police officials reached the hospital. Statement of complainant, PW1 Jagdev Singh was recorded vide Ext.PW9/A. According to him, on 29.6.2006 at about 3.00 P.M., he along with the petitioner Anil Kumar, driver of bus No.HP-68-0130 belonging to HRTC Depot Baijnath was coming from Delhi to Baijnath. When the bus reached near Bhairav Cafe, Baijnath, at about 5.30-5.35, the petitioner could not negotiate a curve. He lost the control and bus went off the road. According to him, he and the petitioner were only occupants in the bus. Both received injuries in the accident. The accident took place due to rash and negligent driving of the petitioner. On the basis of statement, Ext.PW9/A, FIR, Ext.PW8/A, was registered. Spot map was prepared. The petitioner and PW1 Jagdev Singh were medically examined. The bus was got mechanically examined. Statements of the witnesses were recorded. The investigation was completed Thereafter, all the codal formalities were completed and the challan was put up against the petitioner in the trial court. 3. The prosecution examined as many as nine witnesses in support of its case. Statement of the petitioner was recorded under Section 313 Cr.P.C.. He denied case of the prosecution and pleaded innocence. The accused did not lead any evidence in defence. 3. The prosecution examined as many as nine witnesses in support of its case. Statement of the petitioner was recorded under Section 313 Cr.P.C.. He denied case of the prosecution and pleaded innocence. The accused did not lead any evidence in defence. The learned trial court vide judgment dated 13.9.2007 and order dated 14.9.2007 convicted and sentenced the petitioner to undergo simple imprisonment for one month and to pay a fine of Rs.500/- and in case of default of fine amount to further undergo simple imprisonment for seven days under Section 279 of the Indian Penal Code and to undergo simple imprisonment for one month and to pay a fine of Rs.500/- and in case of default of fine amount to further undergo simple imprisonment for seven days under Section 337 of the Indian Penal Code. 4. The petitioner preferred an appeal against the judgment dated 13.9.2007 and order dated 14.9.2007 before the learned Sessions Judge, Kangra at Dharamshala. He dismissed the appeal on 7.1.2013. Hence the appeal. 5. Mr. K.B. Khajuria, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the petitioner. According to him, the star witness, PW1 Jagdev Singh has been declared hostile. He then contended that the accident did not take place due to rash and negligent driving of the petitioner. He further contended that report, Ext.PW5/A submitted by PW5 Umesh Kumar Bali, Mechanic, could not be relied upon since he was not duly qualified to mechanically examine the bus. 6. Mr. Parmod Thakur, learned Addl. Advocate General, has supported the impugned judgments passed by both the courts below. 7. PW1, Jagdev Singh, was the conductor of the bus. He has testified that on 29.6.2006 he was on duty in HRTC bus coming from Delhi to Baijnath. When the bus reached near Bhairav Cafe Baijnath, all of a sudden, it went off the road. He did not know how the bus went off the road since he was counting money. He was declared hostile. In cross-examination, conducted by the learned Public Prosecutor, he admitted that he was medically examined. He had signed Mark A. He also deposed that signatures were obtained on blank papers. He was administered glucose at that time. He has deposed that neither he could see nor was in a position to speak. He was declared hostile. In cross-examination, conducted by the learned Public Prosecutor, he admitted that he was medically examined. He had signed Mark A. He also deposed that signatures were obtained on blank papers. He was administered glucose at that time. He has deposed that neither he could see nor was in a position to speak. He was confronted with his earlier statement recorded under Section 154 Cr.P.C. He has denied the suggestion that the petitioner was driving the bus at a high speed. He has deposed that the bus was climbing the hill. 8. PW2 Tulsi Ram has only deposed that he came to know about the accident after 2-3 days. 9. PW3 Ajay Kumar, has taken the photographs of the bus. 10. PW4, Dr. Tilak Bhagra has deposed that he had examined the petitioner as well as PW1 Jagdev Singh. He issued MLCs, Ext.PW4/A and Ex.PW4/B. He had noticed injuries received by the petitioner and Jagdev Singh. 11. PW5 Umesh Kumar Bali, has deposed that he was working as mechanic for the last 20-25 years. He had examined the bus mechanically on 29.6.2006. He had furnished the report, Ext. PW5/A. In his cross-examination, he has admitted that he did not possess any degree in mechanical engineering. 12. PW6 Janak Chand has only produced record, time table and route permit etc. of bus in question. 13. PW7 SHO Sureshta Thakur had presented the challan in the Court. 14. PW8 HC Suresh Kumar has deposed that he had registered the FIR Ext.PW8/A on the basis of ruqua Mark A. 15. PW9 HC Punni Chand, Investigating Officer, has deposed that on 29.6.2006, a telephonic message was received. Statement of Jagdev Singh was recorded vide Ext. PW9/A, on the basis of which FIR Ex.PW8/A was lodged. He had prepared the spot map and got clicked the photographs. The bus along with appointment/posting order of the petitioner and documents of the bus was taken into possession vide Ext.PW6/A and Ex.PW6/B. The bus was got mechanically examined. He also obtained the mechanical report, Ext. PW5/A. In his cross-examination, he has admitted that the speed of the bus slows down when it climbs the hill. 16. What emerges from the facts, enumerated hereinabove, is that PW1 Jagdev Singh has been declared hostile. He has not supported the prosecution version at all. According to him, he and the petitioner were the only occupants in the bus. PW5/A. In his cross-examination, he has admitted that the speed of the bus slows down when it climbs the hill. 16. What emerges from the facts, enumerated hereinabove, is that PW1 Jagdev Singh has been declared hostile. He has not supported the prosecution version at all. According to him, he and the petitioner were the only occupants in the bus. The bus went off the road all of a sudden. He did not know how the bus went off the road. He was counting money at that time. Though, he was confronted with the earlier statement recorded under Section 154 Cr.P.C. In his cross-examination he has testified that the bus was not being plied at a high speed. Statement of PW2 Tulsi Ram cannot be believed since he came to know about the accident after 2-3 days. PW4 Dr. Tilak Bhagra had medically examined the petitioner and Jagdev Singh. 17. In the instant case, PW5 Umesh Kumar Bali is a material witness. He had examined the bus mechanically at the instance of the police. He had submitted his report, Ext.PW5/A, however, fact of the matter is that in his cross-examination he has admitted that he did not possess any degree in mechanical engineering. According to the report submitted by him, no defect was found in brake system, steering system, clutch system and front suspension of the vehicle. The tyres were in good condition. According to him, the vehicle was in good running condition before accident. The report Ext.PW5/A submitted by PW5 Umesh Kumar Bali cannot be given credence as he was not duly qualified to examine the bus mechanically. The bus ought to have been mechanically examined from a competent/duly qualified person from HRTC. The bus rather belonged to HRTC. Once the star witness has been declared hostile, who has not supported the prosecution case in toto, trial court could not record the conviction of the petitioner. The trial court has recorded the conviction of the petitioner on the basis of statement made by PW1 Jagdev Singh vide Ext.PW9/A and non-explanation given by the petitioner under Section 313 Cr.P.C. The statement of the witness in the Court is material. PW1 Jagdev Singh in his cross-examination has deposed that when his statement was recorded, vide Ext.PW9/A, glucose was administered to him. He was not in a position to hear and speak. PW1 Jagdev Singh in his cross-examination has deposed that when his statement was recorded, vide Ext.PW9/A, glucose was administered to him. He was not in a position to hear and speak. This statement of PW1 has been discarded by the learned trial court only on the ground that PW4, Dr. Tilak Bhagra, as per MLC Ext.PW4/A, found him to be conscious responding to time, place and speech at the time of medical examination. PW1 Jagdev Singh had received multiple injuries in the accident as per Ext.PW4/A. When the bus fell down, PW1 Jagdev Singh must be under shock and trauma. The accident had taken place in the early hours on 29.6.2006. It is admitted by PW1 Jagdev Singh and PW9 HC Punni Chand that there was accent at the place of occurrence. It is also admitted by PW5 Umesh Kumar Bali and PW9 HC Punni Chand that the speed of the bus slows down when it climbs the hill. Therefore, the findings recorded by the learned courts below that the bus was at a high speed and the accident in question took place due to rash and negligent driving of the petitioner are contrary to the record. The prosecution has failed to prove the case against the petitioner. The trial court has convicted the petitioner on a mere superfluous approach without in-depth analysis of the relevant facts. 17. Accordingly, in view of the discussion and analysis made hereinabove, the petition is allowed and the impugned judgment dated 7.1.2013 passed by learned Sessions Judge, Kangra at Dharamshala, H.P. in Cr. Appeal No. 28-B/X/2007, and the impugned judgment dated 13.9.2007 passed by learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, in Criminal Case No.105-II/2006 are set aside. The petitioner is acquitted under Sections 279 and 337 of the Indian Penal Code. The fine amount, if any deposited by the petitioner is ordered to be refunded to him. Bail bonds, if any, furnished by the petitioner are discharged. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.