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2017 DIGILAW 370 (HP)

Ravinder Kumar v. State of H. P.

2017-04-18

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. The instant criminal revision petition filed under Sections 397 and 401 of the Cr.PC, is directed against the judgment dated 3.11.2011, passed by the learned Sessions Judge, Shimla in Cr. Appeal No. 99-S/10 of 2011, affirming the judgment dated 24.9.2011, passed by the learned Judicial Magistrate, Ist Class, Court No. (1), Shimla, in case No. 86/2 of 2009, whereby the present petitioner accused has been convicted and sentenced under Section 279 IPC to undergo simple imprisonment for fifteen days and to pay fine of Rs. 1,000/- and in default of payment of fine, the accused to further undergo imprisonment of seven days. 2. Briefly stated facts as emerge from the record are that complainant namely Ravi Chauhan (PW4) in his statement recorded under Section 154 of the Cr.PC stated that on 28.10.2009, when he was on his way from Kachi Ghati to Dhali via bye pass, in his car bearing No. HP-10-9800, a Tanker bearing No. HR-37C-1195, came from the opposite side in high speed. The complainant further stated that at that relevant time, accused had been driving the tanker in question in rash and negligent manner, as a result of which the tanker struck against the Car being driven by the complainant. The Complainant further reported to the police that, he with a view to save himself took his vehicle to the extreme left/upper side of the high way, as a result of which, vehicle turned upside down. On the basis of aforesaid statement Ext. PW3/B, police registered formal FIR against the petitioner accused under Section 279 IPC. After completion of the investigation, SHO Police Station Shimla, presented the challan/report under Section 173 Cr.PC before the competent Court of law. 3. Learned Judicial Magistrate, Ist Class, Shimla, taking cognizance of the aforesaid report having been filed by the police put notice of accusation to the accused to which he pleaded not guilty and claimed trial. However, fact remains that learned trial Court on the basis of material adduced on record by the prosecution held the petitioner guilty of having committed offence punishable under Section 279 of the IPC and accordingly, sentenced him as per description already given supra. 4. However, fact remains that learned trial Court on the basis of material adduced on record by the prosecution held the petitioner guilty of having committed offence punishable under Section 279 of the IPC and accordingly, sentenced him as per description already given supra. 4. Being aggrieved and dis-satisfied with the aforesaid judgment of conviction recorded by the learned trial Court, present petitioner preferred an appeal under Section 374(3) of the Cr.PC in the Court of learned Sessions Judge, Shimla. However, fact remains that the learned Sessions Judge, dismissed the aforesaid appeal, as a result of which, judgment of conviction recorded by the court below came to be upheld. In the aforesaid background, present petitioner approached this Court by way of instant proceedings seeking his acquittal after setting aside the judgment of conviction recorded by the court below. 5. Mr. S.D. Gill, Advocate, representing the petitioner vehemently argued that the impugned judgments of conviction recorded by the courts below are not sustainable in the eye of law as the same are not based upon the correct appreciation of material made available on record and as such, same deserve to be quashed and set-aside. While referring to the impugned judgments passed by the courts below, Mr. Gill strenuously argued that the evidence led on record by the prosecution has been not read in its right perspective by the courts below, as a result of which erroneous findings have come on record to the detriment of the petitioner accused, who is admittedly an innocent person. With a view to substantiate his aforesaid argument, Mr. Gill, invited attention of this Court to the statement of PW4 (complainant) to demonstrate that both the courts below have erred in concluding that at that relevant time, vehicle in question was being driven rashly and negligently by the petitioner-accused. Mr. Gill specifically invited attention of this Court to the deposition made by PW4 i.e. the complainant before the Court below, wherein he stated that at that relevant time, he was driving Maruti Van bearing No. HP-10-9800, whereas perusal of record, especially, photographs Ext.PW-6/A to G/D, placed on record by the prosecution suggests that accident, if any, occurred at that relevant time was of Santro Car bearing No. HP 10-9800. Mr. Mr. Gill while placing reliance upon the aforesaid statement of the complainant forcefully contended that since very identity of the vehicle involved in the accident is/was in dispute, there was no occasion for the courts below to record conviction against the petitioner accused. In the aforesaid, background, Mr. Gill prayed that the present petitioner be acquitted after setting aside the judgment of conviction recorded by the courts below. 6. Per contra, Mr. Ramesh Thakur, learned Deputy Advocate General, representing the respondent-State supported the impugned judgment passed by the courts below. He vehemently argued that bare perusal of the impugned judgment suggests that entire evidence led on record by the prosecution has been read in its right perspective by the courts below and there is no scope of interference, whatsoever, of this Court, especially, in view of the concurrent findings of fact and law recorded by the courts below. However, the learned Deputy Advocate General was unable to refute the aforesaid contention having been made by Mr. Gill, learned counsel for the petitioner that no conviction could be recorded by the court below on the basis of statement of the complainant, who categorically stated that he was driving Maruti Van at that relevant time. 7. Mr. Thakur, further contended that this Court has very limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence, especially, when it stands duly proved on record that the courts below have dealt with each and every aspect of the matter very meticulously. In this regard, he placed reliance upon judgment passed by Hon’ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:- 8. I have heard learned counsel for the parties as well carefully gone through the record 9. In this regard, he placed reliance upon judgment passed by Hon’ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:- 8. I have heard learned counsel for the parties as well carefully gone through the record 9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:- 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 10. This Court solely with a view to ascertain the genuineness and correctness of the arguments having been advanced by Mr. S.D. Gill, learned counsel for the petitioner carefully perused the statement of the complainant PW4, perusal whereof clearly suggests that he stated before the Court that at that relevant time, he was driving Maruti Van bearing No. HP-10-9800. This Court solely with a view to ascertain the genuineness and correctness of the arguments having been advanced by Mr. S.D. Gill, learned counsel for the petitioner carefully perused the statement of the complainant PW4, perusal whereof clearly suggests that he stated before the Court that at that relevant time, he was driving Maruti Van bearing No. HP-10-9800. Though in his statement made before the Court below, he stated that at around 11:30 when he was driving towards Dhalli from Kachi Ghati, one local bus was standing on the turn. He further stated that as he turned the vehicle on the curve, a tanker came from opposite side and struck against his vehicle, as a result of which, vehicle turned turtled. Similarly, though PW4 has stated that at that relevant time, accident occurred due to rash driving of the driver of Tanker but interestingly, there is no mention, if any, with regard to the particulars of tanker with whom alleged accident occurred. Careful perusal of cross examination conducted on this material witness i.e. complainant, clearly suggests that at that relevant time, the complainant was driving a Maruti van not Santro Car. It has specifically come in his cross-examination that after 45 minutes of accident, police had come on the spot and he had handed over papers of Maruti Van to the police. It has also come in his statement that his vehicle struck against the wall as a result of which, the vehicle turned turtled. The complainant specifically admitted in his cross examination that he had given correct particulars of his vehicle to the police. 11. If the statement given by PW4 is read in its entirety, it clearly suggests that at that relevant time, the complainant was driving Marti Van and not Santro Car, as has been projected by the prosecution. True, it is that there is ample material adduced on record by the prosecution suggestive of the fact that on 28.10.2009, accident took place involving vehicle bearing No. HP-10-9800 as well as tanker bearing No. HR-37-C-1195. Perusal of photographs (Ext.PW6/A to Ext.PW6/D) further corroborates the version put forth by the prosecution that the accident occurred on 28.10.2009, wherein two vehicles referred above were involved. Perusal of photographs (Ext.PW6/A to Ext.PW6/D) further corroborates the version put forth by the prosecution that the accident occurred on 28.10.2009, wherein two vehicles referred above were involved. But this Court sees substantial force in the argument having been made by the learned counsel representing the petitioner-accused that no reliance, if any, could be placed by the courts below on the other evidence be it ocular or documentary led on record by the prosecution, especially, in the teeth of specific statement given by the complainant that at that relevant time, he was driving Maruti Van. Prosecution, by way of ample evidence adduced on record made an endeavor to prove on record that on 28.10.2009, a tanker bearing No. HR-37C-1195, struck against the Santro Car bearing No. HP 10-9800 being driven by the complainant (PW4) but version put forth by the prosecution is in total contradiction of statement of (PW4) the complainant, who at that relevant time was driving the ill-fated vehicle. Perusal of cross examination conducted on PW4 clearly suggests that defence was able to prove on record that Santro Car bearing No. HP-10-9800 was not being driven at that relevant time by the complainant and same was not involved in the accident. Since the complainant himself has stated before the Court below that he was driving Maruti Van bearing HP-10-9800, no reliance, if any, could be placed by the courts below while holding petitioner-accused guilty of having committed offence under Section 279 of the IPC, on the evidence led on record by the prosecution suggestive of the fact that the Tanker in question struck against the Santro Car. Otherwise, entire evidence adduced on record by the prosecution is with regard to accident of Santro Car not Maruti Van. When complainant has stated that Tanker struck against his Car i.e. Maruti Van, how reliance could be placed on photographs, which suggest that tanker struck against Santro Car. Both the Courts below without analyzing categorical statement of PW4 i.e. the complainant, brushed aside the argument of learned counsel representing the petitioner accused that there is material contradiction in the statement of material PWs 1 and 4 and moreover, their versions cannot be accepted since they are related to each other. Both the Courts below without analyzing categorical statement of PW4 i.e. the complainant, brushed aside the argument of learned counsel representing the petitioner accused that there is material contradiction in the statement of material PWs 1 and 4 and moreover, their versions cannot be accepted since they are related to each other. Careful perusal of statement of PW1 and PW4 certainly suggest that there is contradiction in the statement of both the witnesses, which by no stretch of imagination can be termed to be minor contradictions, rather if statement of PW4 is read in its entirety, it changes the entire complexion of the entire prosecution case. 12. This Court after carefully examining the record especially the statement of PW4 sees substantial force in the argument of learned counsel representing the petitioner accused that when very identity of vehicle involved in the accident was in dispute/under suspicion, no conviction, if any, could be recorded against the petitioner accused. It appears that both the courts have failed to appreciate the evidence of material prosecution witness PW4, who was allegedly involved in the accident at that relevant time because he nowhere stated that at the time of accident, he was driving Santro Car and as such, this Court deems it fit to quash and set aside the impugned judgment of conviction recorded by the courts below which are admittedly perverse. 13. Consequently, in view of the detailed discussed made herein above impugned judgment of conviction recorded by the courts below is quashed and set-aside and the present petitioner-accused is acquitted of the charge framed against him under Section 279 of the IPC. Bail bonds are discharged. Interim order, if any, vacated. Pending applications, if any, also stands disposed of.