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2016 DIGILAW 2422 (HP)

State of Himachal Pradesh v. Mohinder Singh

2016-11-16

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. State of Himachal Pradesh aggrieved by the judgment dated 18.5.2007 passed by learned Additional Chief Judicial magistrate, Hamirpur, District Hamirpur in Police challan No. 194-I-98/195-II-98 has preferred the present appeal. The complaint is that learned trial Court has misread, misconstrued and misappreciated the evidence available on record and erroneously acquitted the respondent (hereinafter referred to as the 'accused’) of the accusation put to him under Sections 279 and 337 of the Indian penal Code. 2. Accident of HRTC Bus No. HP-20-0676 and a private bus bearing registration No. HP-22-5785 had taken place at Chabuttra on Sujanpur-Hamirpur road on 15.8.1998 at 5:30 P.M. While the HRTC bus was enroute Palampur to Haridwar and on its way of Hamirpur from Sujanpur, the private bus was on its way from Hamirpur to Sujanpur. The record reveals that another private bus “Sheetla Bus Service” also plies from Palampur to Hamirpur simultaneously behind Palampur-Haridwar HRTC bus. The evidence as has come on record by way of the testimony of PW11 Om Parkash the driver of HRTC bus and PW5/1 Gorakh Ram reveal that on the fateful day also both i.e. HRTC bus and Sheetla bus service were being plied to its destination after each other. Both buses were in competition. According to PW11 it is the driver of Sheetla Bus Service who daily competes with HRTC bus. The case has been registered at the instance of PW9 Bhumi Chand on his statement Ext.PW6/A. It was reported by this witness that the accident occurred at such a stage when the offending bus HP-22-5785 being driven in a rash and negligent manner arrived at the place of accident and struck against the HRTC bus because on account of high speed its driver lost control over the same. The investigation has been conducted by Shri Bakshi Ram PW6, the then SI (SHO) Police Station, Sujanpur. During the course of investigation spot map Ext.PW6/C was prepared and the place of accident with both buses standing there also got photographed vide photographs Ext.P1 to Ext.P7. In the accident the passengers of both buses received minor injuries on their persons. 3. On the completion of investigation the police has filed the challan against the accused. During the course of investigation spot map Ext.PW6/C was prepared and the place of accident with both buses standing there also got photographed vide photographs Ext.P1 to Ext.P7. In the accident the passengers of both buses received minor injuries on their persons. 3. On the completion of investigation the police has filed the challan against the accused. Learned trial Magistrate on finding a prima-facie case having been made out against the accused had put notice of accusation to the accused that it is on account of rash and negligent driving attributed to him the accident had taken place and that he has committed an offence punishable under Sections 279 and 337 of the Indian Penal Code. He, however, pleaded not guilty and has claimed trial. The prosecution has examined 12 witnesses in all. The material prosecution witnesses are PW2 Chandu Lal, who was on duty as conductor with HRTC bus at the time of accident, PW5/1 Shri Gorakh Ram and PW9 Shri Bhumi Chand who were travelling in HRTC bus. The remaining prosecution witnesses are formal. 4. The accused in his statement recorded under Section 313 Cr.P.C. has denied all the incriminating circumstances appearing against him in the prosecution evidence being wrong and stated that the accident has occurred due to rash and negligent driving attributed to the driver of HRTC bus. No evidence, however, has been produced by him in his defence. 5. Learned trial Judge on appreciation of the evidence available on record and analyzing the rival submissions has arrived at a conclusion that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. Consequently, the accused has been acquitted of the accusation as was put to him. 6. The legality and validity of the impugned judgment has been questioned on the grounds, inter-alia, that cogent and reliable evidence as has come on record by way of the testimony of PW2 Chandu Lal, PW5/1 Gorakh Ram, PW9 Bhumi Chand and PW11 Om Parkash has been ignored and brushed aside erroneously and to the contrary learned trial Court has based its findings on hypothesis conjectures and surmises. Irrespective of the prosecution having proved its case beyond all reasonable doubt that it is accused who was driving the offending bus at a high speed, the findings to the contrary recorded by the Court below being erroneous and perverse the accused is stated to be wrongly acquitted. The impugned judgment as such has been sought to be quashed and set aside. 7. Mr. Parmod Thakur, learned Additional Advocate General has pointed out from the record that the ingredients of offence punishable under Sections 279 and 337 of the Indian Penal Code stand satisfactorily proved from the testimony of complainant PW9 and also that of the conductor of bus PW2 as well as its driver PW11. According to Mr. Thakur, the accused in all fairness and in the ends of justice should have been convicted for the commission of offence punishable under Sections 279 and 337 of the Indian penal Code. 8. On the other hand, Mr. K.S. Banyal, learned Senior Advocate assisted by Mr. Vijender Katoch, Advocate while repelling the arguments addressed on behalf of the appellant-State has urged that what to speak of cogent and reliable evidence the present is a case of no evidence and as such the accused according to Mr. Banyal has been rightly acquitted by learned trial Court. 9. Before coming to the given facts and circumstances and also the reappraisal of the evidence available on record it is desirable to take note as to in legal parlance what constitute an offence punishable under Sections 279 and 337 of the Indian penal Code. This Court in Raj Kumar vs. State of H.P., 1997 (2) Shim.L.C. 161 has held that mere rashness and negligence is not sufficient for recording the findings of conviction against an offender, however, such rashness and negligence must be criminal rashness and negligence which in view of the ratio of the judgment ibid is more than mere carelessness or error of judgment. The prosecution is also required to plead and prove that it was an act on the part of the accused alone responsible for the accident in question. The prosecution is also required to plead and prove that it was an act on the part of the accused alone responsible for the accident in question. The High Court of Chhatisgarh in Smt. Manju Baradia vs. State of Chhatisgarh, 2002 (1) Accidents Compensation Judicial Reports 24 has gone one step further while holding that the speed of offending vehicle alone is no criteria to come to the conclusion that the same was being driven in rash and negligent manner but other factors such as density of traffic, width of the road and the attempt of the driver to take precautions to avert the accident etc. also need to be taken into consideration. It is also observed in this judgment that the latest trend to hold a driver of the vehicle guilty in case of accident is contrary to the law unless it is shown by the prosecution by leading cogent, reliable and positive evidence that it was accused alone who was rash and negligent, hence responsible for the accident in question. 10. Therefore, in view of the above legal position, it is crystal clear that rashness and negligence due to which an accident is occurred should not be mere rashness and mere negligence and rather criminal rashness and criminal negligence. 11. Now it is to be determining from the evidence available on record that the prosecution has been able to show that it was the criminal rashness and criminal negligence on the part of the accused due to which this accident has occurred. The material prosecution witness who is complainant also Shri Bhumi Chand while in the witness box as PW9 has stated that the accident had occurred on account of the fault attributed to the driver of the offending private bus (the accused). He has nowhere stated that at the time of accident the accused was driving the bus in a rash and negligent manner. This witness, therefore, has made all together a contrary statement to his previous statement Ext.PW6/A recorded by the police under Section 154 of the Code of Criminal procedure. He, therefore, while in the witness box has not supported the version in his statement Ext.PW6/A qua the manner in which the accident had occurred. The another witness is PW5/1 Gorakh Ram. He was also travelling in HRTC bus enroute Palampur to Haridwar. As per his version the speed of the bus was normal. He, therefore, while in the witness box has not supported the version in his statement Ext.PW6/A qua the manner in which the accident had occurred. The another witness is PW5/1 Gorakh Ram. He was also travelling in HRTC bus enroute Palampur to Haridwar. As per his version the speed of the bus was normal. He also expressed his inability to tell the manner in which the accident had taken place. Since he resiled from his statement recorded by the I.O. during the course of investigation, therefore, was allowed to be cross-examined by learned Public Prosecutor. He has denied any statement made to the police. It is also denied that he has deliberately avoided to make a statement against the driver to save him. In his further cross-examination conducted on behalf of the accused he has admitted that the contents of his statements were readover and explained to him by the police. He however, expressed his ignorance that one private bus was in competition with HRTC bus in which he was travelling. If coming to the testimony of PW11 who happens to be the driver of HRTC bus, no doubt, as per his version the offending bus was being driven in speed and on seeing it he stopped the bus being driven by him on road side. However, the accident could not be avoided because the driver of the private bus lost his control and hit the HRTC bus on which he was driver at the relevant time. However, if his statement in cross-examination is seen he admitted that after the departure of the Palampur-Haridwar HRTC bus from Palampur bus stand Sheetla bus also depart simultaneously from Palampur bus stand. Both buses are being plied after each other. He also admits that the driver of Sheetla bus used to be in competition with HRTC bus daily. This witness also admit a curve at the place of accident and as per his version the accident occurred on account of the patta (leaf) of the private bus broken and on account of that the bus skidded in one side of the road. According to him the accident had taken place on account of breakage of patta of the bus. 12. The only material witness is Chandu Lal who was on duty as conductor with HRTC bus on the date of accident. According to him the accident had taken place on account of breakage of patta of the bus. 12. The only material witness is Chandu Lal who was on duty as conductor with HRTC bus on the date of accident. According to him the accident occurred on account of the rash and negligent driving attributed to the driver of Thakur bus (accused). In his cross-examination, he also tells us that the accident occurred at a place where there was curve. His denial that Sheetla bus was being driven behind HRTC bus is contradictory with that of Om Parkash PW11 the driver of the HRTC bus. 13. Now if the evidence as has come on record by way of the testimony of PW2, PW5/1, PW9 and PW11 is closely scrutinized, it is only PW2 who has stated that the offending bus was being driven by the accused in a rash and negligent manner. The testimony of the remaining three witnesses amply demonstrate that they have not said so while in the witness box. As per the testimony of PW5/1 the speed of the bus rather was normal. The close scrutiny of the evidence produced by the prosecution in support of its case that the accused was rash and negligent and as such responsible for the accident in question reveal that the same is contradictory and vague also. This Court in Lalit Kumar vs. Union of India and another, 1990 (2) Sim. L. C. 233 has held that where the evidence qua rashness and negligence on the part of the accused is vague and contrary to the facts of the case he cannot be convicted on the basis thereof. 14. There is ample evidence available on record to show that Sheetla Private Bus Service was also being plied simultaneously after the departure of the HRTC bus from Palampur. Both buses are in fact being driven in competition i.e. one after the other most probably on account of business rivalry. The testimony of PW11 the driver of HRTC bus that the accident has occurred on account of breakage of patta of Sheetla bus being driven by the accused has caused major dent in the prosecution story. Therefore, with such self contradictory evidence and there being no proof that the rashness and negligent if any on the part of accused was criminal rashness and criminal negligence the accused could have not been convicted at all. Therefore, with such self contradictory evidence and there being no proof that the rashness and negligent if any on the part of accused was criminal rashness and criminal negligence the accused could have not been convicted at all. There is no need to discuss the remaining prosecution evidence being formal in nature and could have been of some help to the prosecution had its case that the accused was driving the offending bus in a rash and negligent manner been proved in accordance with law. 15. I, therefore, find no merit in the appeal. The same is accordingly dismissed. Consequently the judgment under challenge in this appeal is affirmed. Personal bonds furnished by the accused shall stand cancelled and surety discharged.