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2017 DIGILAW 279 (HP)

Prem Chand v. State of Himachal Pradesh

2017-03-31

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge, Fast Track Court, Kullu in Cr. Appeal No. 30/07, dated 19.03.2008, vide which learned appellate Court while dismissing the appeal so filed by the present petitioner, has upheld the judgment passed by the Court of learned Judicial Magistrate, 1st Class, Manali in Criminal Case No. 77-1/07-26-11/07, dated 12.12.2007, whereby learned trial Court while convicting the present petitioner for commission of offence punishable under Sections 279, 337 and 338 of the Indian Penal Code, sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month under Section 279 of the Indian Penal Code, to undergo simple imprisonment for a period of three months and to pay a fine of Rs.500/- and in default of payment of fine, to undergo simple imprisonment for a period of one month under Section 337 of the Indian Penal Code and to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month under Section 338 of the Indian Penal Code. Sentences so imposed were ordered to run concurrently by the learned trial Court. 2. The case of the prosecution was that on 01.11.2006, complainant Jai Chand alongwith his brother-in-law Uggar Sen were going towards Manali and when they were standing at a place known as 15 Mile on the side of the road, while waiting for a bus for Manali at 1:30 p.m., a Mahindra jeep bearing registration No. HP-34B-0745 came from the side of Manali, which was being driven in high speed and bumper of the said jeep hit the complainant, as a result of which, complainant Jai Chand fell on the ground. The driver of the jeep stopped the same at some distance from the spot of occurrence of the accident and after glancing at the complainant, he fled away towards Kullu alongwith the jeep. The complainant sustained injuries on both his legs on account of the jeep so striking against him. At the relevant time, complainant was not aware about name of the driver of the jeep. The complainant sustained injuries on both his legs on account of the jeep so striking against him. At the relevant time, complainant was not aware about name of the driver of the jeep. Thereafter, the complainant was brought to Kullu Valley Hospital by his brother-in-law for the purpose of treatment. As per the prosecution, the accident took place due to high speed, rash and negligent driving of jeep by its driver, i.e. the present petitioner/accused. 3. On 02.11.2006 at around 11:30 a.m., information was received at Police Station, Kullu qua the said road accident, on the basis which, rapat No. 33 was registered and HC Upender Singh and Constable Teja Singh were sent to Kullu Valley Hospital. These police officials after reaching the hospital, recorded statement of the complainant under Section 154 of the Code of Criminal Procedure. On the basis of said statement, FIR was lodged and investigation was carried out by the police. In the course of investigation, MLC Ex. PW1/A of the complainant, X-ray film Ex. PW1/B and Ex. PW1/C were taken on record. In the MLC, Medical Officer gave his opinion that injury No. 1 sustained by the complainant was grievous. Site plan was also prepared. The offending vehicle was taken into possession by the police. Mechanical examination of the same was also conducted and report of the same Ex.-PB was also obtained. Statements of witnesses were also recorded as per their versions and after completion of investigation, challan was filed in the Court. Notice of Accusation was put to the accused for commission of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and under Sections 181 and 187 of the Motor Vehicles Act, to which he pleaded not guilty and claimed trial. 4. On the basis of evidence produced on record by the prosecution, learned trial Court held that it stood proved that accused was driving the offending vehicle in a rash and negligent manner and he did not take due, proper and reasonable care and precaution while driving the said vehicle on the relevant date and time and it was on account of rash and negligent driving of the offending vehicle by the accused that he caused simple as well as grievous injuries to the complainant. On these bases, learned trial Court held the accused guilty of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, whereas learned trial Court did not found accused to be guilty of other offences with which he was charged. While arriving at the said conclusion, it was held by the learned trial Court that complainant Jai Chand, who entered the witness box as PW-4, had fully supported and corroborated the case of the prosecution and that this witness had asserted that the occurrence took place due to fault and negligence of the accused. Learned trial Court also held that the statement of complainant Ex. PW2/A was recorded in Kullu Valley Hospital and during the course of his examination there was hardly anything to impeach and discredit his testimony. Learned trial Court further held that the testimony of the complainant in fact remained un-dented and unshattered and he had clearly established that on the relevant date and time, it was accused who was driving Mahindra jeep in a rash and negligent manner and at a high speed, which had resulted in the accident. Learned trial Court also held that the case put forth by the defence that the accident occurred on account of the brother-in-law of the complainant striking his scooter with a danga was categorically denied by the complainant. Learned trial Court also held that the statement of PW-4 stood corroborated from the testimony of PW-5 Uggar Sen, who in fact was an eye witness and who clearly stated in the Court as to how the accident occurred on account of the rash and negligent driving of the accused. Learned trial Court further held that in the course of cross-examination of the said witness, this witness did not depose contrary to what he had deposed in his main examination. Learned trial Court took note of the fact that this witness had categorically asserted in his crossexamination that it was the accused who was driving the offending vehicle. Learned trial Court also held that this witness had also categorically denied that it was he who was coming on his scooter and dashed the same against the danga on the fateful day and that the offending vehicle was being driven by one Ram Lal and not by the accused. Learned trial Court also held that this witness had also categorically denied that it was he who was coming on his scooter and dashed the same against the danga on the fateful day and that the offending vehicle was being driven by one Ram Lal and not by the accused. Learned trial Court also took note of the fact that though it stood proved on record that PW-4 and PW-5 were related to each other, but this fact itself did not warrant to discard the testimony of PW-5 as his statement was consistent and firm and he was in fact an eye witness of the alleged occurrence. Learned trial Court also held that there was nothing on record from which it could be inferred that complainant Jai Chand had reasons to falsely implicate the accused in this case. Learned trial Court also held that Dr. N.K. Prasher, who entered the witness box as PW-1 had stated that he had medically examined the complainant in Kullu Valley Hospital and had issued MLC Ex. PW1/A and X-ray film Ex. PW1/B and Ex. PW1/C and that he found injury No. 1 sustained by the complainant to be grievous in nature and injury No. 2 as simple and the said injury could be sustained in a vehicular accident. Learned trial Court also took note of the fact that this witness was not cross-examined on behalf of the accused. Learned trial Court further held that prosecution had produced on record mechanical report Ex. PB and the same demonstrated that there was no mechanical defect in the offending vehicle. Learned trial Court also held that PW-7 HC Sher Singh, who was Investigating Officer in the case, had duly proved site plan which demonstrated that place 15 Mile was a chowk/junction where there was a diversion over the river Beas through a bridge and there was also a rain shelter which meant that at the place of occurrence, people used to assemble to go to different directions. On these bases, it was held by the learned trial Court that it was imperative on the part of the accused to have had driven the vehicle cautiously with all reasonable care and precautions. On these bases, it was held by the learned trial Court that it was imperative on the part of the accused to have had driven the vehicle cautiously with all reasonable care and precautions. Learned trial Court also held that the defence of the accused that it was not he who was driving the offending vehicle on the relevant date and time and it was one Ram Lal who was driving the vehicle, was incorrect, as in his statement recorded under Section 313 of the Code of Criminal Procedure, accused had stated that he was driving the vehicle slowly and a false case had been made out against him. On these bases, it was held by the learned trial Court that the accused had rather contradicted his stand with the statement recorded under Section 313 of the Code of Criminal Procedure. Learned trial Court also held that the accused failed to probablise his defence that it was PW-5 Uggar Sen, who was driving the scooter in a rash and negligent manner, on which complainant was also seated and he dashed the same with a danga, due to which complainant sustained injuries. On these bases, learned trial Court convicted the accused for the commission offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. 5. In appeal, learned appellate Court upheld the findings so returned by the learned trial Court. It was held by the learned appellate Court that the testimonies of PW-4 and PW-5 on oath were clear and categorical on the point that the accident took place on account of rash and negligent driving of the vehicle by the accused. Learned appellate Court also held that both these witnesses were subjected to lengthy cross-examinations by the accused, but nothing could be elicited from the same which could have rendered their depositions unworthy of reliance. Learned appellate Court also held that the defence pleas taken by the accused that it was not he who was driving the vehicle, but the same was driven by Ram Lal, son of Mehar Chand stood falsified from the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, wherein the accused took the stand that he was driving the vehicle in question at a normal speed. Learned appellate Court held that said false defence pleas also negated the innocence of the accused in the case. Learned appellate Court held that said false defence pleas also negated the innocence of the accused in the case. Learned appellate Court also held that there was nothing on record to suggest that the accused was falsely implicated in the case and the depositions of prosecution witnesses coupled with the contents of M.L.C. proved the involvement of the accused. With regard to statement of Constable Teja Singh, who had deposed that HC Upender Singh had gone to Zonal Hospital, Kullu to investigate the matter and that statement of Jai Chand was recorded there, it was held by the learned appellate Court that statement of PW-1 Dr. N.K. Prasher clearly demonstrates that the injured was admitted at Kullu Valley Hospital, where he was medically examined and that records further demonstrate that report No. 33 was recorded in rojnamcha on 02.11.2006 on the basis of rukka received in the Police Station to the effect that an injured had been admitted in Kullu Valley Hospital, who had met with an accident. On these bases, it was held by the learned appellate Court that the discrepancy in the testimony of Constable Teja Singh was trivial in nature and was incapable of rendering entire prosecution story doubtful. Learned appellate Court also held that as far as the contention of defence that no opportunity was afforded to the accused to lead defence evidence was concerned, the same was without foundation as records demonstrated that on 05.10.2007, statement of accused was recorded to the effect that he did not want to lead any defence evidence. On these bases, learned appellate Court while dismissing the appeal so filed by the accused, upheld the judgment of conviction passed by the learned trial Court. 6. Feeling aggrieved, the accused had filed the present appeal. 7. Mr. Ajay Chandel, learned counsel for the petitioner/appellant has argued that the findings returned by both the learned Courts below were perverse and not based on the records of the case as both the learned Courts below had failed in not appreciating that the prosecution had failed to link the accused with the alleged occurrence. Prosecution had also failed to prove that it was accused who was driving the offending vehicle at the relevant date, time and place. Prosecution had also failed to prove that it was accused who was driving the offending vehicle at the relevant date, time and place. He further argued that the statements of PW-4 and PW-5 were also totally misread and mis-appreciated by both the learned Courts below as they erred in not appreciating that it had not come in the statement of either of these two witnesses that the vehicle was driven in a rash and negligent manner by the accused which led to the occurrence of the alleged incident. He further argued that both the learned Courts below had also erred in not appreciating that there was delay in lodging the FIR, which remained unexplained and it stood proved that complainant in fact had sustained injuries on account of the scooter being driven by PW-5 having hit against a danga, on which the complainant was also the pillion rider. On these bases, it was prayed by Mr. Chandel that the judgments of conviction passed against the accused by both the learned Courts below be set aside. In the alternative, Mr. Chandel has submitted that in case this Court is not inclined to interfere with the findings returned by both the learned Courts below on merit, then this Court may sympathetically consider modification of sentences imposed upon the petitioner, keeping in view the fact that the petitioner is undergoing trauma of trial for the last more than 10 years. 8. On the other hand, Mr. Vikram Thakur, learned Deputy Advocate General has argued that there was neither any infirmity nor any perversity with the findings of conviction returned by both the learned Courts below against the accused. Mr. Thakur urged that the statements of PW-4 and PW-5 read with statement of Investigating Officer and the Medical Officer clearly demonstrated beyond the shadow of doubt that it was the accused who was driving the offending vehicle at the relevant date, time and place in a rash and negligent manner, which resulted in the accident, on account of which, both simple as well as grievous injuries were sustained by the complainant. Mr. Thakur submitted that the factum of accused driving the vehicle at the date, time and place was not only proved from the statement of the complainant, but also stood proved from the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. Mr. Mr. Thakur submitted that the factum of accused driving the vehicle at the date, time and place was not only proved from the statement of the complainant, but also stood proved from the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. Mr. Thakur further urged that the accused had failed to probablise his defence that the accident in fact took place on account of a scooter being driven by PW-5 which hit with a danga. Mr. Thakur further urged that delay in lodging the FIR also stood sufficiently explained before the learned Courts below. On these bases, it was submitted by Mr. Thakur that there was no merit in the revision petition and the same be dismissed. 9. I have heard the learned counsel for the parties and have also gone through the judgments passed by both the learned Courts below and the records of the case. 10. In the present case, the first perversity which has been pointed out by the learned counsel for the petitioner is that as far as the judgments passed by the learned Courts below are concerned, both the learned Courts below erred in not appreciating that the factum of offending vehicle being driven by the accused was not proved by the prosecution. I will deal with his this contention first. A perusal of the statement of PW-4 complainant demonstrates that he has deposed in the Court that on 01.11.2006, when he was waiting for a bus at 15 Mile for Manali at around 1:30 p.m., a Mohindra jeep bearing registration No. HP-34B-0745 which was coming from Manali side in fast speed hit him, as a result of which, he sustained injuries. In his main examination, this witness has also categorically stated that the accident took place on account of rash and negligent driving on the part of the driver of the vehicle, i.e. accused. In his cross-examination, this witness has deposed that before the accident and before lodging of the case, he did not knew the accused and he also stated that on the date when the accident took place he had seen the accused while driving the vehicle. He denied the suggestion that after the alleged accident took place, he had become unconscious. In his cross-examination, this witness has deposed that before the accident and before lodging of the case, he did not knew the accused and he also stated that on the date when the accident took place he had seen the accused while driving the vehicle. He denied the suggestion that after the alleged accident took place, he had become unconscious. He also categorically denied the suggestion that on the day when the accident took place the offending vehicle was not driven by the accused but was driven by some other person. Now if one peruses the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, the answer given by the accused to question No. 14 which was ‘‘why the present case has been made up against you?’’, was “Gari aaram se chela raha tha”. Similarly, in answering question No. 16 which was “do you want to say anything else?”, his answer was “Gari aaram se chela raha tha. Case jhutha banaya hai.” The statement of the accused so recorded under Section 313 of the Code of Criminal Procedure coupled with the testimony of PW-4 clearly demonstrates that the stand of the accused that he was not driving the offending vehicle at the time when the accident took place and that the same was being driven by some other person is false and incorrect. Therefore, in my considered view, it cannot be said that the findings returned by both the learned Courts below to the effect that it was the accused who was driving the offending vehicle when the accident took place are perverse findings. 11. The second contention of the learned counsel for the petitioner that both the learned Courts below erred in not appreciating that it has not come on record that the vehicle in question was driven by the accused in a rash and negligent manner, which resulted in the unfortunate accident also deserves to be rejected. Before dwelling on this point, I would like to refer to a judgment of the Hon’ble Supreme Court in State of Karnataka Vs. Satish, (1998) 8 SCC 493 , on which learned counsel for the petitioner has relied upon while stressing this point. Mr. Before dwelling on this point, I would like to refer to a judgment of the Hon’ble Supreme Court in State of Karnataka Vs. Satish, (1998) 8 SCC 493 , on which learned counsel for the petitioner has relied upon while stressing this point. Mr. Chandel has argued that Hon’ble Supreme Court has held that in the absence of any material on record, no presumption of rashness and negligence can be drawn and merely because the vehicle was being driven at a high speed does not bespeak of either negligence or rashness. 12. Now, when we advert to the statements of PW-4 and PW-5, it has come in the statement of PW-4 that the offending vehicle which hit him came from Manali side in a high speed and that accident took place because of the negligence of the driver of the vehicle. PW-5 Uggar Sen also deposed in the Court that the accident took place on account of the vehicle which was being driven by the accused in a high speed. In his examination-in-chief, this witness has also deposed that the accident took place on account of the negligence of its driver. In the judgment which has been cited by Mr. Chandel, Hon’ble Supreme Court has held that in the absence of any material on record, no presumption of rashness or negligence can be drawn. Coming to the facts of this case, the factum of the vehicle being driven by the accused in a rash and negligent manner has been expressly stated in the Court both by PW-4 and PW-5. Not only this, this Court can also not ignore the fact that the accused has taken the defence that it was not he who was driving the vehicle at the time when the accident took place, however, the accused has miserably failed to probablise this defence of his and it has been established on record that it was accused who was driving the offending vehicle when the accident took place. In this background, in my considered view, as the factum of accident having taken place on account of rash and negligent driving of the offending vehicle by the accused stands duly proved on record by the statements of PW-4 and PW-5, it cannot be said that the findings recorded by the learned Courts below to the said effect are perverse. Even otherwise, the conduct of the accused is also self speaking. Even otherwise, the conduct of the accused is also self speaking. It stood proved on record that after the accident took place, he run away from the spot. In my considered view, if the accused was not guilty, then there was no occasion for him to have had run away from the spot. Therefore, the second contention of the learned counsel for the petitioner is also without merit. 13. The third contention of the petitioner that there was delay in lodging of the FIR also, is without any merit because it stands satisfactorily proved on record that after the accident took place on 01.11.2006 at 1:30 p.m., the injured was taken by PW-5 to Kullu Valley Hospital, where he was treated upon and the police machinery was moved next day on the information which was so provided to the police from the hospital itself. Besides this, the statement of Dr. N.K. Prasher, who entered the witness box as PW-1 clearly demonstrates that the injured was examined by him on 01.11.2006 at around 2:30 p.m. and that he had prepared the MLC and the injuries sustained by the injured/complainant could have been sustained in a vehicular accident. Incidentally, PW-1 was not cross-examined by the accused. Therefore, it cannot be said that there was inordinate delay in lodging FIR which has remained unexplained. 14. Therefore, the above discussion clearly demonstrates that the findings of conviction returned by the learned trial Court and appellate Court, are neither perverse nor illegal and the conclusions arrived at by both the learned Courts below are duly borne out from the records of the case. 15. Now, coming to the alternative submission of the learned counsel for the petitioner, in my considered view, taking into consideration the fact that the petitioner has been undergoing the trauma of trial since the year 2006, it will be in the interest of justice in case the sentence of imprisonment imposed upon the petitioner under Section 279 of the Indian Penal Code is modified from three months’ simple imprisonment to two months’ simple imprisonment, under Section 337 of the Indian Penal Code from three months’ simple imprisonment to two months’ simple imprisonment and that imposed under Section 338 of the Indian Penal Code from six months’ simple imprisonment to two months’ simple imprisonment. Ordered accordingly. Ordered accordingly. However, the fine imposed under the said Sections by the learned trial Court is not modified nor is the sentence imposed in default of payment of fine. All the sentences shall run concurrently, as has been ordered by learned trial Court. With the abovesaid modification in the sentence imposed upon the present petitioner, revision petition is dismissed.