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2016 DIGILAW 1176 (HP)

Vijay Kumar v. State of H. P.

2016-06-24

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. This revision petition has been filed against the judgment passed by learned Additional Sessions Judge-I, Kangra at Dharamshala dated 19.12.2015 in Cr. Appeal No. 36- D/X/14/2011, confirming judgment dated 2.9.2011 passed by the Court of learned Judicial Magistrate 1st Class (II), Kangra, District Kangra, HP in Cr. Case No. 16-II/2004 vide which judgment the accused has been convicted for offences punishable under Sections 279 and 338 IPC and has been sentenced to undergo simple imprisonment of one month for offence punishable under Section 279 IPC and fine of Rs. 500/- and in default of payment of fine to further undergo simple imprisonment for 15 days and also to undergo simple imprisonment for three months for offence punishable under Section 338 IPC with fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment for 15 days. 2. The case of the prosecution was that on 29.9.2003 at around 11:10 a.m., Varinder Kumar, (hereinafter to be referred as ‘complainant’), was going on his scooter bearing registration No. HP-39A-3255 towards Ichhi and Vijay Kumar son of Pritam Chand was the pillion rider along with him. Vijay Kumar son of Onkar Chand (‘accused’), came at high speed in Maruti Car No. HR-0IL-1515 from New Bus Stand, Kangra and rammed the said car into the scooter being driven by complainant. Accused was driving the Maruti Zen Car on the wrong side of the road. The accident took place on account of rash and negligent driving of the accused and as a result of the said accident, the pillion rider sustained injury and was taken to the hospital. Statement of complainant was recorded under Section 154 Cr.P.C., on the basis of which, FIR was registered. 3. After the completion of investigation, as sufficient material was found against the accused, he was asked to face trial for the abovementioned offences. Notice of accusation for offences punishable under Sections 279,337 and 338 IPC were put to the accused, to which he pleaded not guilty and claimed trial. 4. 3. After the completion of investigation, as sufficient material was found against the accused, he was asked to face trial for the abovementioned offences. Notice of accusation for offences punishable under Sections 279,337 and 338 IPC were put to the accused, to which he pleaded not guilty and claimed trial. 4. On the basis of material produced on record by the prosecution, the learned Trial Court came to the conclusion that it stood duly established by the prosecution that the accused was driving Zen Car on the day of incident and he/accused had no authority to drive the aforesaid vehicle but he drove the same arelessly resulting in the accident with the scooter coming from opposite side. The learned Trial Court further held that it was the duty of the accused to drive the vehicle carefully while taking an exit from New Bus Stand towards Tehsil Chowk keeping in view the fact that the road was a National Highway and many vehicles plied on the same. The learned Trial Court further held that the accused not only drove the vehicle without any authority, he also rammed the same into the scooter on the wrong side of the road which was on its way to Ichhi. 5. Thus, on these bases, the learned Trial Court concluded that the accused was negligent in driving the Maruti Zen Car on the day of accident and the prosecution was able to prove beyond all reasonable doubt that the accused was driving the vehicle in question in a negligent manner which resulted in grievous injury to the pillion rider-Vijay Kumar. Accordingly, the learned Trial Court convicted the accused for offences punishable under Sections 279 and 338 IPC. 6. Feeling aggrieved by the said judgment passed by the learned Trial Court, accused filed an appeal which was dismissed by the learned Appellate Court vide judgment dated 19.12.2015. 7. I have heard learned counsel for the parties and also gone through the records of the case and have also perused the judgments passed by the learned Courts below. 8. 6. Feeling aggrieved by the said judgment passed by the learned Trial Court, accused filed an appeal which was dismissed by the learned Appellate Court vide judgment dated 19.12.2015. 7. I have heard learned counsel for the parties and also gone through the records of the case and have also perused the judgments passed by the learned Courts below. 8. A perusal of the judgment passed by both the learned Courts below demonstrates that it was evident from the material produced on record that it was the accused who was driving Maruti Zen Car bearing registration No. HR-01L-1515 which met with an accident with scooter being driven by complainant, in which accident the pillion rider of the said scooter, namely, Vijay Kumar was grievously injured. 9. Learned counsel for the petitioner has attempted to convince this Court that the accident was not on account of the rash and negligent driving of the accused. According to him, the vehicle was being driven by accused on the correct side of the road and in fact it was the driver of the scooter, who was negligent in plying the scooter. 10. The contention of the learned counsel for the petitioner is falsified from the perusal of spot map, from which it is apparently clear that the scooter was being driven on the left side of the road and it is the accused, who came driving the car on the wrong side of the road and rammed into the scooter. Learned counsel for the petitioner could not point out any infirmity with the spot map Ext.PW3/D. He could not on the basis of material on record demonstrate that the case of the prosecution to the effect that it was the accused who entered the National Highway from the wrong side was either incorrect or not borne out from the material on record produced by the prosecution. 11. Similarly, learned counsel for the petitioner also could not point out any perversity or infirmity with the findings arrived at by both the learned Courts below while holding the accused guilty of the offences for which he was charged. 12. In fact, in this case PW6, Ramesh Chand, is a very material witness. PW6 was an employee of Sanjay Verma and he was deployed as a driver on the Zen Car bearing registration No. HR-01L-1515 involved in the accident on the fateful day. 12. In fact, in this case PW6, Ramesh Chand, is a very material witness. PW6 was an employee of Sanjay Verma and he was deployed as a driver on the Zen Car bearing registration No. HR-01L-1515 involved in the accident on the fateful day. He has deposed that on 29.9.2003 around 10:00 a.m., he had taken the car for the purpose of washing and accused had accompanied him. After getting the car washed, they were returning back to Kangra. Near Kangra Bus Stand, he stopped the car and went to purchase cigarette. Accused was sitting in the car and when he returned back, accused started the car and struck the same with scooter on the wrong side. The scooter was proceeding towards Mataour side. They were two persons riding on the scooter. He informed about the incident to his employer on telephone. He also deposed that the accused drove the car without his permission and struck the same with the scooter on the wrong side. He further deposed that the accident had taken place due to the negligence of the accused. 13. Sanjay Verma has entered into witness box as PW7. He has also corroborated the story of the prosecution. He has stated that Ramesh Chand (PW6) was employed by him as a driver on Maruti Zen Car No. HR-01L-1515 and he had sent the car for washing. After some time his driver telephonically informed him that the car had met with an accident and when he went on the spot he saw that his car had met with an accident with a scooter. The boy who was the pillion rider in the scooter had suffered injuries and he had been taken to the hospital. 14. PW2, Rinku Mehra, who is eye witness, has also deposed that the accident has occurred due to the negligence of the accused. The complainant has entered into the witness box as PW14 and he has also corroborated the story of the prosecution. It is pertinent to mention that the testimony of PW14-Vijay Kumar (complainant) has remained un-shattered. 15. 14. PW2, Rinku Mehra, who is eye witness, has also deposed that the accident has occurred due to the negligence of the accused. The complainant has entered into the witness box as PW14 and he has also corroborated the story of the prosecution. It is pertinent to mention that the testimony of PW14-Vijay Kumar (complainant) has remained un-shattered. 15. Thus, it can be safely inferred that from the evidence on record it stood established beyond reasonable doubt that on 29.9.2003, the complainant was going on a scooter at around 11;10 a.m., with pillion rider-Vijay Kumar when the said scooter was hit by the car bearing No. HR-0IL-1515, which came from wrong side near Bus Stand Kangra. The testimony of the prosecution witnesses in the present case is cogent, reliable and trustworthy. The defence has not been able to impinge the credibility of these witnesses. Defence was not able to prove that the scooter was being driven at high speed as alleged. Photographs of the site Ext.P1 to P3 which have been duly proved on record also demonstrate that the car which was driven by the accused was being driven on the wrong side. 16. The medical examination of injured pillion rider is also on record as Ext. PW11/A. The injured was examined by Dr. Manju Raina, who stepped into the witness box as PW11 and has proved MLC Ext.PW11/A. She has stated that the nature of injury suffered by the pillion rider Vijay Kumar son of Pritam Chand was grievous in nature. 17. All these aspects of the matter have been taken into consideration by both the learned Courts below and the findings which have been returned by both the learned Courts below are duly borne out form the material on record. It cannot be said that the judgments passed either by the learned Trial Court or by the learned First Appellate Court are perverse or the findings are not borne out form the material produced on record by the prosecution. The said record has also been scrutinized by this Court on the prayer of learned counsel for the petitioner. 18. It has been held by the Hon’ble Supreme Court in Janta Dal Vs. The said record has also been scrutinized by this Court on the prayer of learned counsel for the petitioner. 18. It has been held by the Hon’ble Supreme Court in Janta Dal Vs. H.S. Chowdhury & others, 1992 (4) SCC 305 that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. 19. Thus, it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case. 20. Lastly, learned counsel for the petitioner has argued that keeping in view the fact that the accident took place in the year 2003 and the accused has been undergoing the ordeal for the last 13 years this Court may show leniency as far as the sentence imposed upon the accused is concerned. 21. In my considered view, ends of justice will be served in case the sentence imposed upon the accused is modified to the effect that the accused shall undergo simple imprisonment of 15 days for the offence punishable under Section 279 IPC with fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment of 15 days. He shall further undergo simple imprisonment of 15 days for offence punishable under Section 338 IPC with fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment of 15 days. Both the sentences shall run concurrently With the said modification, the judgments of conviction passed by both the learned Courts below are upheld and sentence is modified to the extent mentioned hereinabove. The revision petition is accordingly disposed of.