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2017 DIGILAW 1 (HP)

State of Himachal Pradesh v. Rajinder Singh

2017-01-02

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal under Section 377 of the Code of Criminal Procedure is maintained by the appellant-State of Himachal Pradesh against the impugned judgment for enhancement of sentence in a case under Sections 279, 337 and 338 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Court No. 2, Shimla, District Shimla, (H.P), dated 23.7.2007, in Police Challan No. 4/2 of 2004. 2. Briefly stating the facts giving rise to the present appeal are that on 20.2.2004 at about 9:00 PM, at Nav Bahar, Mohinder Singh (hereinafter referred to as 'the complainant') was returning from Chhota Shimla along with his brother-in-law Virender Kumar (PW-4), in bus bearing No. HP-51-1337 and they were to get down near Gas Agency Nav Bahar. He asked the conductor to stop the bus, on this Conductor whistled and driver stopped the bus. Virender Kumar (PW-4) got down and when he was about to get down, driver-accused (hereinafter referred to as 'the accused') at once drove the bus and fell down and sustained injuries. The accident has taken place due to rashness and negligence of the driver and conductor of the aforesaid bus. On the statement of complainant, FIR was registered with Police Station, Dhalli and investigation was conducted by HC Suraj Prakash of Police Post Sanjauli. Investigating Officer prepared site plan and recorded the statements of witnesses, as per their version. After completion of the investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as seven witnesses. Statement of accused was recorded under Section 313 Cr.P.C, wherein he has denied the prosecution case and claimed innocence. No defence was led by the accused. 4. Learned Deputy Advocate General appearing on behalf of the appellant has argued that the sentence as awarded by the learned Court below is too much on the lower side and is required to be enhanced. He has further argued that when the guilt is proved the enhancement should be reasonable. 5. On the other hand, learned counsel appearing on behalf of accused has argued that the appeal is not maintainable. He has further argued that the sentence as awarded in the facts and circumstances of the case cannot be said to be inadequate at all. 6. 5. On the other hand, learned counsel appearing on behalf of accused has argued that the appeal is not maintainable. He has further argued that the sentence as awarded in the facts and circumstances of the case cannot be said to be inadequate at all. 6. To appreciate the arguments of learned Deputy Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. In order to prove its case, PW-1 Dr. Dinesh Bisht has examined Mohinder Thakur/injured and conducted MLC Ex.PW1/A. PW-3 Mahinder Singh, complainant and PW-4 Virender Kumar, who was accompanying the complainant at the relevant time. As per PW-3, he was returning with Virender Kumar (PW-4) from Chhota Shimla, in bus bearing No. HP-51-1337, at about 9:00 PM, when the bus reached near Nav Bahar, he asked the Conductor to stop the bus, bus was stopped at the instance of Conductor and first of all, Virender Kumar (PW-4) got down and when he was about to get down, the driver of the bus at once drove it without waiting for the whistle of the Conductor due to which, he fell down and sustained injuries. As per PW-3, his two teeth were broken. According to him, he was treated at IGMC, Shimla. According to him, the accident has occurred due to rashness and negligence of the accused. In his cross-examination, he boarded the bus at about 8:45 PM. He has admitted that he boarded the bus from its rear door. PW-4 Virender Kumar, was also accompanying the complainant at the relevant time and his version is similar to that of complainant. He has identified the accused. In his cross-examination, he has admitted that it was dark. He has denied that the complainant himself fell down due to darkness, when the bus stopped at Sanjauli. He has denied that the accident does not occur due to negligence of the accused. PW-6 Mahinder Kumar, owner of the bus bearing No. HP-51-1337. He has stated that at the relevant time, the accused was driver of the bus. PW-2 Constable Ram Singh, proved rapat Ex.PW3/A. PW-5 HC Surya Prakash, proved investigation. In his cross-examination, he has stated that the test identification parade of the accused was not got conducted. PW-6 Mahinder Kumar, owner of the bus bearing No. HP-51-1337. He has stated that at the relevant time, the accused was driver of the bus. PW-2 Constable Ram Singh, proved rapat Ex.PW3/A. PW-5 HC Surya Prakash, proved investigation. In his cross-examination, he has stated that the test identification parade of the accused was not got conducted. PW-7 Inspector Ramesh Chand, proved FIR Ex.PW5/A. The identity of the accused has been established beyond the shadow of reasonable doubt, as such, test identification parade was not required, as stated by PW-5 HC Surya Prakash, Investigating Officer. 8. From the evidence on record, it is established that accused was driving the bus at the relevant time. It is also established that accused was rash and negligent, as he at once drove the bus, when the complainant was about to get down without waiting for the whistle of the Conductor. It need hardly be emphasized that the safety of the public, who travel by public conveyances like the bus in question is the primary concern of the Conductor and the driver, who are Incharge and control of public conveyances. As per the evidence, the bus stopped near Gas Agency, Nav Bahar, at the instance of the Conductor, who whistled to stop the bus and the complainant was getting down when the accused at once drove the bus without waiting for the whistle of the Conductor to start the bus. The accused should have waited till the complainant got down from the bus. The conduct of the accused was rash and negligent due to which the complainant fell down and sustained injuries. The defence suggested that the complainant himself fell down due to darkness when the bus stopped at Sanjauli, is not plausible. However, there is no appeal against the judgment of conviction. 9. At the very outset, it is seen from the record that the learned Court below has convicted the accused for the commission of offence punishable under Sections 279, 337 and 338 of the Indian Penal Code on 25.7.2007, but while awarding the sentence, he was sentenced till rising of the Court for the commission of offence punishable under Section 279 of the Indian Penal Code, fine of Rs. 500/- for the commission of offence punishable under Section 337 of the Indian Penal Code and fine of Rs. 500/- for the commission of offence punishable under Section 337 of the Indian Penal Code and fine of Rs. 1000/- for the commission of offence punishable under Section 338 of the Indian Penal Code. In default of payment of fine, the convict shall suffer simple imprisonment for a period of one month. The conviction and sentence in this case has been passed on 23.7.2007. Section 377 of the Code of Criminal Procedure was amended in the year 2005 by the Act 25 of 2005 and the amendment was implemented on and w.e.f. 23.6.2006. Amended Section 377 of the Code of Criminal Procedure is reproduced as under : 377. Appeal by the State Government against sentence- (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present (an appeal against the sentence on the ground of its inadequacy- (a) to the Court of session, if the sentence is passed by the Magistrate, and (b) to the High Court, if the sentence is passed by any other Court) Meaning thereby that after 23.6.2006, no appeal was maintainable before this Court against the inadequacy of sentence passed by the Magistrate. The present appeal presented before this Court on 24.9.2007 so, in fact the appeal was not maintainable before this Court. 10. In view of the aforesaid discussions made here-in-above, I find no merit in this appeal and the same is accordingly dismissed. Pending applications, if any, also stands, disposed of.