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2016 DIGILAW 1649 (HP)

Bhubneshwar Singh v. State of Himachal Pradesh

2016-08-09

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present criminal revision petition is maintained by the petitioner/accused (hereinafter referred to as ‘the petitioner’) assailing the judgment of learned Sessions Judge, Mandi, District Mandi, H.P., passed in Criminal Appeal No. 3 of 2006, decided on 29.12.2006, whereby the judgment, dated 18.03.2005, rendered by learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, H.P., in Police Challan No. 954-I/1997, under Sections 279 and 337 IPC, was partially modified and the sentence was reduced as under:- “……judgment is partly modified to the extent that the period of imprisonment is ordered to be reduced to three months from six months for offence u/s 279 IPC and also the period of imprisonment is ordered to be reduced to three months from six months for offence u/s 337 IPC”. with a prayer to set aside the judgments of the learned Courts below and acquit the petitioner/accused. 2. Briefly stating the facts giving rise to the present petition are that Shri Sher Singh (since dead), who is complainant, was driver in bus No. HP 31-3202. On 19.06.1997 at about 7:30 a.m. when the bus was enroute to Mandi from Sundernagar, at place Bhaur, driver stopped the bus on left side of the road and passengers started alighting. In the interregnum, truck bearing No. HID 1493 came with high speed and rammed into the bus from behind, which caused extensive damage to the bus. In the said accident, passengers also sustained injuries and they were referred to Community Health Centre, Ratti, for administering first aid. The accident was the result of rash and negligent driving of the accused (petitioner herein). FIR Ex. PW-8/A was registered, police visited the spot and seized the truck with its documents. Broken pieces of window panes of bus were also taken into possession. Both bus and truck were taken into possession and the injured persons were medically examined. Photographs of the accidental vehicles were also taken and site map was prepared. After completion of investigation, challan was presented in the court. 3. Heard. Learned counsel for the petitioner has argued that the prosecution has failed to prove the guilt of the accused/petitioner beyond the shadow of doubt as there was no negligence on the part of the petitioner, but he has been convicted only on the basis of uncorroborated and unsubstantiated evidence on record. 3. Heard. Learned counsel for the petitioner has argued that the prosecution has failed to prove the guilt of the accused/petitioner beyond the shadow of doubt as there was no negligence on the part of the petitioner, but he has been convicted only on the basis of uncorroborated and unsubstantiated evidence on record. He has also argued that the Courts below have not properly appreciated the evidence. On the other hand, the learned Additional Advocate General has argued that the guilt of the accused has been proved beyond the shadow of doubt and so the revision petition be dismissed. To appreciate the arguments of the learned counsel for the parties, I have gone through the record in detail. 4. Dr. R.D. Anand (PW-1) has medically examined Shri Dilip Singh, one of the injured in the accident. PW-1 deposed that the injuries received by injured Shri Dilip Singh could be possible in a motor vehicle accident. However, this witness, in his cross-examination, has deposed that the injuries are also possible by fall from a bicycle. Dr. Y.K. Sood (PW-2) medically examined another injured Shri Rakesh Kumar and he has stated that the injuries sustained by him are possible in a motor vehicle accident. Shri Raju (PW-3) is the Photographer, who photographed the spot. PW-4, Shri Narain Dutt, is owner of the truck, which was being driven by the petitioner at the relevant time when the accident took place. PW-4 has deposed that the petitioner was working as driver with him at the time of the accident. PW-5, Shri Rakesh Kumar, is the conductor of the bus and he is witness of recovery memos prepared by the police. This witness has deposed that the bus reached the spot of occurrence in the morning at about 7 a.m. after starting from Sundernagar and when the driver stopped the bus to alight the passengers, a truck, being driven by the petitioner/accused came from behind and rammed into the bus. He has further stated that 1 to 2 persons, who were sitting in the bus, sustained minor injuries. This witness, in his cross-examination, has admitted that 5-7 persons gathered on the spot. He has also admitted that where the bus was stopped by the driver of the bus, there was no bus stop. He has also admitted that there were instructions to stop the bus only on the bus stops. This witness, in his cross-examination, has admitted that 5-7 persons gathered on the spot. He has also admitted that where the bus was stopped by the driver of the bus, there was no bus stop. He has also admitted that there were instructions to stop the bus only on the bus stops. He has stated that police got his signatures after half an hour. However, he has denied the suggestion that accident took place due to the negligence of the bus driver. Shri Anant Ram (PW-6) is Foreman, who mechanically inspected the truck and found the truck in mechanically good condition at the time of the accident. Injured-Dilip Singh (PW-7) has stated that the accident took place due to the fast driving of the truck. He has further stated that he received injuries in his right leg. In his cross-examination this witness has admitted that the truck had hit the bus from the back side. He has also admitted that the bus was stopped to alight the passengers. 5. ASI, Shri Narain Singh, was examined as PW-8. This witness had registered the FIR on the basis of ruka. Sub Inspector, Shri Rajinder Singh, was examined as PW-9, who has investigated the case. He acting upon a telephonic information visited the spot and got recorded the statement of the driver of the bus. This witness has deposed that due to the fault of the truck driver, the accident took place, as the same was being driven at a fast speed. 6. The statement of the petitioner was recorded under Section 313 Cr.P.C., wherein he has denied that he was driving the truck in a rash and negligent manner. He has further stated that he has been involved in this case falsely and he is innocent. 7. It is emanating from the evidence on record that the bus was hit by the truck from behind when the truck was being driven by the accused and the bus driver stopped the bus at a place to alight or board the passengers, which was not a bus stop. A witness has stated that the bus was stopped to alight the passengers, however, other witness has stated that the bus was stopped to board the passengers. 8. A witness has stated that the bus was stopped to alight the passengers, however, other witness has stated that the bus was stopped to board the passengers. 8. The learned Trial Court while deciding the case against the petitioner has held that as the petitioner cannot suggest to the prosecution witnesses that he did not stop his truck when the bus was stopped all of sudden without giving any signal. 9. In appeal, the learned Lower Appellate Court while giving findings has held as under:- “……Court cannot ignore the fact that there is alarming increase in road accidents these days and drivers of the heavy vehicles are not taking proper care and caution while driving vehicles, as a result of which roads have become virtually death trap. In view of what has been stated above I find no legal basis or reasons to differ with the conclusion arrived at by the Ld. Trial Magistrate.” 10. In the case in hand to prove the offences under Sections 279 and 337 IPC what is required to be established by the prosecution is that the driver of the truck was driving the truck in rash and negligent manner and his act was rash or negligent so as to endanger human life or the personal safety of others or the same was likely to cause hurt or injury to other persons or the act of the accused was rash and negligent resulting into endanger to human life and/or cause injury. In the instant case, evidence of the conductor of the bus, Shri Rakesh Kumar, is otherwise, as while appearing in the witness-box as PW-5, he has stated that 1 to 2 passengers received minor injuries, but he did not say anything with regard to rash and negligent driving of the petitioner. He has admitted that the bus was stopped at a place other than the bus stop and it has also come on record that the bus was stopped to board the passengers. The manner in which the accident took place and the damage, which had resulted, show that the driver of the truck was either not driving the truck in a fast speed or he has applied the brakes and the truck rammed into the bus in slow momentum as only window panes of the bus were broken and two passengers received minor injuries. The fact that the bus stopped at a place other than the bus stop cannot be ignored. The petitioner was driving the truck behind the bus on a highway and he cannot presume that the bus will stop abruptly. In these circumstances, it will be unsafe to hold conclusively that the petitioner was driving the truck rashly and negligently, which resulted into the accident in which two passengers traveling in the bus sustained minor injuries. 11. It is well settled that no conviction can be based on the suspicion howsoever strong the suspicion be. As discussed above, the learned Courts below have arrived at the findings of guilt against the accused, which are based on suspicion only, resultantly, are perverse, as the Courts below have failed to appreciate the evidence and law properly. 12. As the prosecution has failed to prove the guilt of the petitioner/accused conclusively and beyond the shadow of doubt, the present petition is allowed. Consequently, conviction and sentence, as imposed by the learned Trial Court and reduced in appeal by the learned Lower Appellate Court, are set aside. As a result, the petitioner is acquitted. 13. In view of the above, the criminal revision petition is disposed of accordingly.