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2017 DIGILAW 355 (HP)

Karam Chand v. State of Himachal Pradesh

2017-04-13

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, Presiding Officer, Fast Track Court, Kangra at Dharamshala, in Criminal Appeal No. 46- P/05/03, dated 18.08.2007, 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, Court No. (II), Palampur, in Criminal Case RBT No. 101-II/2000, dated 11.06.2003 whereby learned trial Court had convicted the present petitioner for commission of offences punishable under Sections 279 and 304-A of Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced him to undergo simple imprisonment for 6 months and to pay a fine of Rs. 1000/- under Section 279 of IPC and to undergo simple imprisonment for two years and to pay fine of Rs. 2,000/- under Section 304-A of IPC. All the sentences were ordered to run concurrently. 2. The case of the prosecution in brief was that on 20.11.1999, at about 1:00 p.m., accused Karam Chand was driving Maruti Van bearing registration No. HP-02-4231 on a public way which vehicle was being driven by him in a rash and negligent manner, as a result of which, said vehicle struck against Premi Devi (deceased) near Bari, who was using the road as a pedestrian. As a result Smt. Premi Devi died on the spot. On information so provided by Shri Gandhi Ram at Police Post Bhavarna, Rapat No. 12, dated 20.11.1999 was entered in daily diary. Thereafter Head Constable Baldev Singh visited the spot and recorded the statement of Shri Sarwan Kumar i.e. son of the deceased under Section 154 of Cr.P.C. On the basis of statement of Sarwan Kumar, FIR was registered. During the course of investigation, site plan was prepared and Maruti Van involved in the accident was taken into possession alongwith documents and driving licence of accused. Postmortem of dead body of Premi Devi was got conducted at Civil Hospital, Palampur. Photographs of the site were taken. Vehicle in question was got mechanically examined and report of mechanic was also obtained by the Investigating Officer. Statements of witnesses were also recorded in the course of investigation by the Investigating Officer. Postmortem of dead body of Premi Devi was got conducted at Civil Hospital, Palampur. Photographs of the site were taken. Vehicle in question was got mechanically examined and report of mechanic was also obtained by the Investigating Officer. Statements of witnesses were also recorded in the course of investigation by the Investigating Officer. After the completion of investigation, challan was filed in the court and notice of accusation was put to the accused for commission of offences punishable under Sections 279 and 304-A of IPC, to which he pleaded not guilty and claimed trial. 3. Learned trial Court vide its judgment dated 11.06.2003 held that the prosecution evidence on record proved beyond all reasonable doubt that accused was driving the Maruti Van bearing registration No. HP-02-4231 in a rash and negligent manner on 20.11.1999 on a public highway and the same hit pedestrian Premi Devi who died on account said accident when the vehicle reached near Bari on the fateful day. Learned trial Court convicted the accused for commission of offences punishable under Sections 279 and 304-A of IPC. While arriving at the said conclusion, it was held by the learned trial Court that the accident was witnessed by PW1 Sarwan Kumar who was walking alongwith Premi Devi at the relevant time, who specifically disclosed the number of the vehicle as HP-02-4231 which was coming from the side of Daroh in excessive speed and hit his mother and caused her death. Learned trial Court however took note of the fact that this witness had deposed that Van was being driven by its driver in a negligent manner but he did not recognize driver of the same as driver had fled away from the spot and he later on came to know that driver of the offending Van was Karam Chand. Learned trial Court held that the deposition of PW1 was natural and reliable and his version was further corroborated by information which was received in the Police Station, which was duly incorporated in the daily diary after the occurrence of the accident on 20.11.1999 Ext. PA. Learned trial Court also held that factum of accident having occurred with the offending Van whereby death of Premi Devi was caused was not disputed on the date of occurrence. PA. Learned trial Court also held that factum of accident having occurred with the offending Van whereby death of Premi Devi was caused was not disputed on the date of occurrence. Learned trial Court further held that in fact defence of the accused was that he was not driving the Van in question on the relevant day whereas owner of the offending Van PW6 Balkrishan had proved the factum of driving of offending Van by the accused on the relevant date and that the accident thus stood proved to have taken place with the same Van and there was no circumstance to implicate the accused falsely. Learned trial Court held that factum of PW6 having deposed that he had deployed three drivers, namely, Ram Swaroop, Karam Chand and Prittam Chand was of no assistance to accused as PW6 had categorically stated that it was the accused who was driving the offending Van on the relevant day. Learned trial Court also held that PW3 Mehar Singh had also clearly deposed that when owner of the offending Van PW6 Bal Krishan reached the spot, he disclosed that driver of the vehicle was the accused. Learned trial Court took note of the fact that this narration of PW3 was not controverted in the course of his cross examination. On these bases, it was held by the learned trial Court that the statements of PW3 and PW6 categorically proved that the Van in issue with which the accident was caused was being driven at the relevant time and place by the accused. It further held that conduct of the accused of absconding from the spot after stopping the offending vehicle further proved the factum of his being rash and negligent while driving the offending vehicle which hit deceased Premi Devi and caused her death. On these bases, learned trial Court held that prosecution had proved its case against the accused beyond reasonable doubt and convicted and sentenced the accused for commission of offences punishable under Sections 279 and 304-A of IPC. 4. In appeal, the findings so returned by the learned trial Court were upheld by the learned Appellate Court. On these bases, learned trial Court held that prosecution had proved its case against the accused beyond reasonable doubt and convicted and sentenced the accused for commission of offences punishable under Sections 279 and 304-A of IPC. 4. In appeal, the findings so returned by the learned trial Court were upheld by the learned Appellate Court. While upholding the judgment of conviction passed by the learned trial Court it was held by learned Appellate Court that as far as identity of the driver was concerned, as per the prosecution, the vehicle in issue was being plied by the accused, however, the defence of the accused was that it was not being driven by him but by someone else. Learned Appellate Court held that statement of PW6 Bal Krishan demonstrated that accused was the driver of the offending vehicle on 20.11.1999 who had taken a passenger to Thural. Learned Appellate Court also held that no doubt PW6 had stated that he had deployed three drivers but it was not suggested to him by the defence that at the time of accident accused was not the driver and someone else was driving the vehicle. Learned Appellate Court also held that in fact no suggestion was given to PW6 by the defence that on that particular day accused was not the driver on the offending vehicle neither accused had taken the passenger to Thural. Learned Appellate Court also held that PW3 had stated that after the occurrence of accident when PW6 reached the spot, he disclosed that driver of the vehicle was accused Karam Chand. Learned Appellate Court held that no suggestion was put to this witness that owner had not disclosed to the police that it was the accused, who was driving the offending vehicle on the day of occurrence. On these bases, it was held by learned Appellate Court that the prosecution had duly established the identity of the accused as the person who was driving the offending vehicle on the fateful day. Learned Appellate Court affirmed the findings returned by learned trial Court to the effect that accident was in fact caused by rash and negligent driving on the part of the accused. 5. Feeling aggrieved by the judgment so passed by the learned Courts below, the petitioner filed this revision petition. 6. Mr. Learned Appellate Court affirmed the findings returned by learned trial Court to the effect that accident was in fact caused by rash and negligent driving on the part of the accused. 5. Feeling aggrieved by the judgment so passed by the learned Courts below, the petitioner filed this revision petition. 6. Mr. Anoop Chitkara, learned Counsel appearing for the petitioner has argued that the judgments of conviction passed against the present petitioner by both the learned Courts below convicting the accused for commission of offences punishable under Sections 279 and 304-A of IPC are perverse as both the learned Courts below have erred in not appreciating that the prosecution was not able to link the accused as driver of the vehicle with which the accident had taken place. Mr. Chitkara strenuously argued that judgments of conviction passed by both the learned Courts below are based on conjectures and surmises and both the learned Courts below erred in not appreciating that prosecution was not able to establish beyond reasonable doubt that in fact it was the accused who was driving the vehicle on the fateful day at the fateful time when the unfortunate accident took place. On these counts alone, Mr. Chitkara submitted that judgments of conviction passed by the learned Courts below against the accused are liable to be set aside. 7. Ms. Parul Negi, learned Deputy Advocate General, on the other hand, argued that there is no merit in the contentions of learned counsel for the petitioner because both the learned Courts below have returned findings to the effect that the prosecution had established on record that it was the accused who was driving the offending vehicle at the time when the unfortunate accident took place and immediately after the occurrence of the accident, the accused ran away from the spot. Learned Deputy Advocate General further argued that the factum of offending vehicle being driven by the accused at the relevant date, time and place stood proved from the testimony of PW6 i.e. owner of the vehicle in issue and there was no reason to disbelieve testimony of this witness and of PW3. Learned Deputy Advocate General further argued that the factum of offending vehicle being driven by the accused at the relevant date, time and place stood proved from the testimony of PW6 i.e. owner of the vehicle in issue and there was no reason to disbelieve testimony of this witness and of PW3. Accordingly, she urged that as both the learned Courts below had held that it stood proved on record that it was the accused who was driving the offending vehicle at the relevant date time and place, the findings so returned by learned Courts below did not warrant any interference. On these bases, it was urged by Ms. Negi that as there was no merit in the revision petitioner, the same be dismissed. 8. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the learned Courts below. 9. Before proceeding in the matter, it is relevant to take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction of this Court does not extend to re-appreciation of evidence. It has been held by the Hon’ble Supreme Court that the High Court in exercise of its revisional power can interfere only if the findings of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by Hon’ble Supreme Court in Sanjaysinh Ramrao Chavan Versus Dattatray Gulabrao Phalke and Others, (2015) 3 SCC 123 , that unmerited and undeserved prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon’ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence. 10. In this case, Hon’ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence. 10. Keeping in view the arguments raised in the present petition by the learned counsel for the petitioner, the sole point of adjudication in this revision petition is to ascertain as to whether it stood established by the prosecution from the evidence which was placed on record that it was the accused who was driving the offending vehicle when the unfortunate accident took place or not. 11. A perusal of record of the case demonstrate that PW1 Sarwan Kumar, son of the deceased has deposed in the Court that on 20.11.1999 at around 1:00 p.m., he and his mother were walking on the road when one Van bearing registration No. HP-02-4231 came in a very fast speed from behind and hit his mother and dragged her and his mother died on account of said impact. This witness deposed that the accident took place on account of rash and negligent driving of the driver of the vehicle. This witness deposed that he did not know that the name of person who was driving the said Van was Karam Chand. In his cross examination, he admitted that he did not know the driver but self stated that in fact driver had ran away from the spot. PW3 Mehar Singh deposed in the Court that on 20.11.1999 he had gone to the house of Ravi Kant and there he came to know that mother of Sarwan was injured in an accident and thereafter when he went to the spot, he saw Premi Devi lying dead on the road and one Van was there on the road. He further deposed that Sarwan and many other persons were there at the spot whereas the driver of the Van had ran away from the spot. He further deposed that owner of the Van came on the spot and he disclosed that name of driver of the Van was Karam Chand. In his cross examination, he admitted that he did not know Karam Chand and that he had reached the spot after 15 minutes of the accident. 12. PW4 Gandhi who was an eye-witness to the accident, as per prosecution, did not support the case of the prosecution. In his cross examination, he admitted that he did not know Karam Chand and that he had reached the spot after 15 minutes of the accident. 12. PW4 Gandhi who was an eye-witness to the accident, as per prosecution, did not support the case of the prosecution. Similarly PW5 Susheel Kumar who as per prosecution was another eyewitness turned hostile and did not support the case of prosecution. 13. PW6 Bal Krishan, owner of the Van in question deposed in the Court that he was the owner of the Maruti Van bearing registration No. HP-02-4231 and he had deployed Karam Chand as driver on the said vehicle. He further deposed that he had gone to the spot after the accident took place but the driver had run away from the spot. In his cross examination, he stated that he was not aware as to how many drivers he had deployed, however, he stated that Ram Swaroop, Karam Chand and Prittam Chand were deployed by him as drivers on Van in issue. He denied that at the time of occurrence of the accident, the accused was not the driver of offending Van. 14. Now, a close scrutiny of the testimony of PW1, PW3 and PW6 demonstrates that none of them have either seen or stated that it was accused and the accused only who was driving the offending vehicle at the time when accident took place. The eye witnesses have not supported the case of the prosecution. The conclusion qua accused being driver of the offending vehicle at the time when accident took place has been arrived at by learned trial Court on the basis of testimony of the owner of the vehicle i.e. PW6 Bal Krishan, who deposed that accused was engaged by him as driver of the Van in issue on the day when the unfortunate accident took place and PW3 who deposed that after the unfortunate accident had taken place, when owner of the vehicle reached the spot, he (owner) disclosed that the driver engaged on the said vehicle was the accused. However the fact of the matter still remains that neither PW1 deposed in the Court that it was the accused who was driving the offending vehicle when the unfortunate accident took place nor the testimony of PW3 or PW6 proves this vital fact that at the time when the accident took place, it was the accused who was at the wheels of the offending vehicle. Simply because accused was engaged as the driver of the offending vehicle, this fact ipso facto cannot be the substitute for express proof of the fact that vehicle in fact was being driven by the accused at the time when the accident took place. In my considered view, this very important aspect of the matter has been ignored by both the learned Courts below. Learned trial Court as well as learned Appellate Court erred in not appreciating that engagement of accused by the owner of the offending vehicle as its driver was not itself a proof of the fact that it was the accused and accused only who was driving the vehicle at the time when the accident took place. It is settled law of the land that more serious a crime, more stringent the punishment, more stringent is the onus on the prosecution to prove its case. In my considered view, in the present case, the prosecution was not able to prove beyond reasonable doubt that at the time of unfortunate accident in which one precious human life was lost, it was the accused, who was on the wheels of the offending vehicle. It has come in the statement of owner of the offending vehicle that accused was engaged as a driver on the said vehicle and he was taking one passenger to Thural but the prosecution did not examine the passenger who could have been the best witness to prove the fact that it was the accused or someone else who was driving the vehicle on the fateful day. In fact, there is nothing on record placed by the prosecution from which it can be deciphered that when the unfortunate accident took place, it was the accused who was driving the vehicle. Prosecution has miserably failed to prove this fact beyond reasonable doubt. In fact, there is nothing on record placed by the prosecution from which it can be deciphered that when the unfortunate accident took place, it was the accused who was driving the vehicle. Prosecution has miserably failed to prove this fact beyond reasonable doubt. No doubt, PW6 has stated that it was the accused who was engaged by him on the fateful day to drive the offending vehicle but fact of the matter remains that no one has deposed in the Court that it was the accused who was driving the vehicle when the accident took place. In this background, when the defence of the accused was that he was not driving the vehicle at the time when the accident took place, onus was heavily upon the prosecution to have had proved this point beyond reasonable doubt, which prosecution has failed to prove. 15. Therefore, in view of discussion held above, in my considered opinion, the findings returned by both the learned Courts below to the effect that prosecution was able to prove beyond reasonable doubt that it was accused on the wheels of the offending vehicle when the unfortunate accident took place, are perverse findings. Said findings are not borne out from the records of the case. There is not even an iota of evidence on record from which it can be inferred that it was the accused who was driving the vehicle when the unfortunate accident took place. 16. Accordingly, in view of the above discussion, this revision petition is allowed and the judgment of conviction passed by the Court of learned Judicial Magistrate 1st Class, Court No. 2, Palampur, in Criminal Case RBT No. 101-II/2000, dated 11.06.2003 as well as judgment passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in Criminal Appeal No. 46-P/05/03, dated 18.08.2007 are set aside and the petitioner is acquitted of offences punishable under Sections 279 and 304-A of IPC. Fine amount, if any, deposited by the petitioner be returned to him in accordance with law. The criminal revision petition is disposed of accordingly. Pending miscellaneous applications, if any, also stand disposed of.