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2017 DIGILAW 423 (HP)

Amar Singh v. State of Himachal Pradesh

2017-04-27

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this revision petition, petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Sirmaur District at Nahan in Criminal Appeal No. 42-Cr.A/10 of 2009 dated 01.08.2011, vide which learned Appellate Court while dismissing the appeal so filed by the present petitioner upheld the judgment passed by the Court of learned Judicial Magistrate Ist Class, Court No. 1, Paonta Sahib in Cr. Case No. 159/2 of 2006/05 dated 24/08/2009/27.08.2009, whereby learned trial Court had convicted the present petitioner for commission of offences punishable under Sections 279, 338, 201 of Indian Penal Code and Section 181 of M.V. Act and sentenced him to undergo simple imprisonment of one month and to pay fine of Rs.500/- for commission of offence under Section 279 of Indian Penal Code, simple imprisonment of three months and to pay fine of Rs.500/- for commission of offence under Section 338 of Indian Penal Code, simple imprisonment of one month and to pay fine of Rs.500/- for commission of offence under Section 201 of Indian Penal Code and sentenced to pay fine of Rs.500/- for commission of offence under Section 181 of M.V. Act. 2. The case of the prosecution in brief was that on 12.04.2005 a telephonic message was received at Police Station, Paonta Sahib, at around 11.55 A.M., from Medical Officer, Civil Hospital Poanta Sahib, about the occurrence of an accident. Thereupon, ASI Shyam Lal alongwith other police officials visited the hospital, where they recorded the statement of victim Shaweta Sharma daughter of Ashok Kumar, resident of village Bangran. Victim stated that on the fateful day i.e. 12.04.2005, she had gone to Government Senior Secondary School, Shivpur for taking admission in 9th class alongwith her friend Swati. At around 10.40 A.M. when the said bus reached near the school, they alighted from the same and as they intended to make certain purchases, therefore, she alongwith her friend started crossing the road but in the meanwhile a scooter came from Bangran side and struck against her right leg, as a result of which, she fell down. She further stated that scooter driver drove away the scooter back towards Bangran side. She also stated that she did not remember the number of the scooter but the driver of the same was known to her, as he was resident of village Bangran. She further stated that scooter driver drove away the scooter back towards Bangran side. She also stated that she did not remember the number of the scooter but the driver of the same was known to her, as he was resident of village Bangran. On the statement of the victim, FIR Ext. PW10/A was registered. In the course of investigation, spot map Ext. PW10/C was prepared. Scooter alongwith R.C. and insurance were taken into possession by the police. Driving licence could not be produced by the accused. The scooter was also subjected to mechanical examination. MLC of the injured was obtained by the police. Statements of the witnesses were recorded as per their versions by the Investigation Officer. 3. After the completion of investigation, challan was presented in the Court and as a prima facie case was found against the accused for commission of offences punishable under Sections 279, 337, 338 and 201 of Indian Penal Code and Section 181 of M.V. Act, accordingly notice of accusation was put to him, 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 prosecution had succeeded in establishing the guilt of the accused beyond reasonable doubt. Learned trial Court convicted the accused by holding that it stood proved on record that it was the accused who was driving the scooter at the relevant time. While arriving at the said conclusion, learned trial Court relied upon the statement of complainant Shaweta Sharma, who entered the witness box as PW-8 as well as upon the testimony of PW-9 Swati Sharma, who was accompanying the complainant when the accident took place. Learned trial Court held that the complainant had categorically deposed that on 12.04.2005 at 10.55 A.M. while she was on her way alongwith PW-9, a scooter came from Bangran side in high speed and struck against her leg, as a result of which, she fell down. Learned trial Court also took note of the fact that the complainant had categorically deposed that she had identified the person who had hit her with the scooter and the said person was the accused who belonged to her village. Learned trial Court also took note of the fact that the complainant had categorically deposed that she had identified the person who had hit her with the scooter and the said person was the accused who belonged to her village. Learned trial Court held that the complainant was specific in stating that it was the accused who was driving the scooter in high speed who struck the scooter against her resulting into the alleged injury upon her body. Learned trial Court disbelieved the version of the accused that on the fateful day he was not driving the scooter and it was in fact his father Mangat Ram who was driving the scooter and that it was the complainant who struck against their scooter and thereafter her father demanded money to the tune of Rs.20,000/- and threatened that in case the amount was not paid, then the accused would be falsely implicated and as the said amount was not paid, it was on that account that a false case was lodged against the accused. Learned trial Court also took note of the fact that when Mangat Ram entered the witness box he did not depose anything with regard to the alleged demand having been raised by the father of the complainant. Learned trial Court further relied upon the testimony of PW-9, who was an eye witness to the accident and who proved that the accident in fact had taken place due to rash and negligent driving of the accused. Learned trial Court also held that the complainant was medically examined by PW-5 Dr. Amitab Jain whose testimony alongwith MLC Ext. PW5/A established the injuries which were received by PW-8 on account of the accident which occurred because of the rash and negligent driving of the accused. Learned trial Court also held that it had come in the statement of complainant that after the accident took place, the accused ran away from the spot which demonstrated that the accused wanted to conceal the real facts of the incident. On these basis, it was held by learned trial Court that this demonstrated that the accused ran away from the spot to cause disappearance of the evidence of the commission of the said accident on the spot. Learned trial Court also held that the accused had not produced his driving licence to demonstrate that he possessed a valid licence to drive the scooter. Learned trial Court also held that the accused had not produced his driving licence to demonstrate that he possessed a valid licence to drive the scooter. On these basis, learned trial Court convicted the accused for commission of offences punishable under Sections 279, 338, 201 of Indian Penal Code and Section 181 of M.V. Act. 5. In appeal, the findings so returned by learned trial Court were upheld by learned Appellate Court. Learned Appellate Court also by relying upon the statements of the complainant as well as PW-9 upheld the judgment of conviction so passed by learned trial Court. It was held by learned Appellate Court that the testimony of the complainant was corroborated by the statement of PW-9, who was accompanying the complainant at the time when the accident took place. Learned trial Court also held that though it had come in the award passed by MACT-I, Sirmaur at Nahan, that it was Mangat Ram who was driving the scooter at the relevant time, however the findings so returned by the MACT-I were not binding on the said Court. It is pertinent to mention at this stage that the findings to this effect were also returned by learned trial Court. Learned Appellate Court also held that statements of PW-8 and PW-9 provided satisfactory proof of accused driving the vehicle at the relevant time and that the accident in fact had taken place on account of his negligent driving. 6. Feeling aggrieved, the accused has filed this revision petition. 7. Mr. Deepak Kaushal, Advocate, learned counsel for the petitioner vehemently argued that the judgments of conviction passed by both the learned Courts below are not sustainable in the eyes of law as there was perversity in the findings so returned by both learned Courts below. As per Mr. Kaushal, both the learned Courts below erred in not appreciating that there was no evidence on record from which it could be inferred that it was the accused who was driving the vehicle at the relevant time when the accident took place. In the alternative, it was argued by Mr. As per Mr. Kaushal, both the learned Courts below erred in not appreciating that there was no evidence on record from which it could be inferred that it was the accused who was driving the vehicle at the relevant time when the accident took place. In the alternative, it was argued by Mr. Kaushal that even if it is assumed that it was the accused who was driving the vehicle, even then both the learned Courts below erred in not appreciating that it had neither come in the statement of PW-8 nor in the statement of PW-9 that the accident took place because of rash and negligent driving of the accused. On these points, he urged that the judgments under challenge be set aside. No other point was urged. 8. On the other hand, Mr. V.S. Chauhan, learned Additional Advocate General, argued that there was no merit in the present revision petition as both the learned Courts below had rightly returned the findings of conviction against the accused as the guilt of the accused stood proved beyond reasonable doubt by the evidence which was placed on record by the prosecution. Mr. Chauhan argued that identity of the accused was duly established by the complainant who had suffered injuries in the accident which were caused on account of rash and negligent driving of the accused and further the accused had not been able to produce any evidence to prove that it was his father who was driving the scooter when the accident took place. Mr. Chauhan further argued that the very fact that the accused was taking contrary pleas to assail the judgments passed by both learned Courts below established the fact that it was he and not his father who in fact was driving the scooter at the relevant time. Mr. Chauhan further argued that even otherwise in exercise of such revisional jurisdiction it was not open for this Court to interfere with the findings returned by both learned Courts below by re-appreciating the evidence. It was urged by Mr. Chauhan that there was no merit in the present petition and the same be dismissed. 9. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both learned Courts below. 10. It was urged by Mr. Chauhan that there was no merit in the present petition and the same be dismissed. 9. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both learned Courts below. 10. The primary perversity which has been attributed by the learned counsel for the petitioner to the judgments passed by both learned Courts below is that both the said Courts erred in not appreciating that the prosecution was not able to prove that it was the accused who was driving the scooter at the relevant time. 11. In order to appreciate the said contention of learned counsel for the petitioner, this Court perused the records of the case to ascertain as to whether the findings returned by both learned Courts below that it was the accused who was driving the scooter were borne out from the records of the same or were perverse. 12. Statement of the complainant recorded under Section 154 Cr.P.C. is Ext. PW8/A. This statement was recorded at around 12.30 Noon, whereas the accident took place at around 10.40 A.M. A perusal of the statement demonstrates that it was mentioned therein that the complainant who had passed her Class-8 examination from Government Senior Secondary School Shivpur, had gone on 12.04.2005 for taking admission in Class-9 at around 10.30 A.M. and when she alongwith her friend Swati reached near the school at around 10.40 A.M. and after they alighted from the bus and were in the process of crossing the road, a scooter which was coming from Bangran side in high speed struck against her right leg, as a result of which, she fell down. It is further recorded therein that the scooter driver ran way with the scooter and though the complainant could not note the number of the scooter but she recognized the driver who was a resident of Bangran. Now, when we peruse the statement of the complainant recorded in Court as PW-8 we find that all these facts have been stated by her in the Court and there is neither any improvement nor any contradiction in the same as compared to her statement recorded under Section 154 Cr.P.C., on the basis of which, FIR was lodged. Now, when we peruse the statement of the complainant recorded in Court as PW-8 we find that all these facts have been stated by her in the Court and there is neither any improvement nor any contradiction in the same as compared to her statement recorded under Section 154 Cr.P.C., on the basis of which, FIR was lodged. This witness has also categorically stated in the Court that the scooter was being driven by the accused in high speed, which hit her and that she recognized the accused as he was a resident of her village. In her cross-examination, this witness categorically denied the suggestion that the accused was falsely implicated in the case as accused had refused to pay money as was being demanded by the father of the complainant. Even otherwise, it is not the case of the defence that initially the complainant had not stated that she recognized the person who was driving the scooter and this improvement was subsequently made by her with the passage of time in her statement. 13. Besides this, a perusal of the statement of PW-9 Swati Sharma, who was an eye witness to the accident also demonstrates that this witness also categorically stated that it was the accused who was driving the offending scooter in high speed, as a result of which, the same struck the complainant, who suffered injuries on the said account. 14. In my considered view, statements of these witnesses are cogent, reliable, trustworthy and they inspire confidence. The credibility of the statements of PW-8 and PW-9 could not be impeached by the defence in the course of their cross-examination. The defence has also not been able to establish that both P-8 and PW-9 had some motive to make false allegation against the accused as it has not been proved on record that there was any enmity or animosity between the complainant or the accused and PW-9 and accused. 15. Besides this, both the learned Courts below have rightly held that the findings returned by MACT Tribunal were not binding upon them and the factum whether or not the scooter was being driven by the accused had to be decided by them on the basis of evidence produced before learned trial Court by the prosecution. 15. Besides this, both the learned Courts below have rightly held that the findings returned by MACT Tribunal were not binding upon them and the factum whether or not the scooter was being driven by the accused had to be decided by them on the basis of evidence produced before learned trial Court by the prosecution. The fact that the accused was not able to produce driving licence before learned trial Court assumes significance because it is apparent that the accused was not possessing any driving licence. Therefore, a story was concocted by him to the effect that it was not he but his father who was driving the scooter. 16. In view of above discussion, in my considered view, in the present case, there is no perversity with the findings returned by both learned Courts below to the effect that it was the accused who was driving the scooter when the same struck against the complainant and this fact is duly borne out from the statement of complainant PW-8 as well as from the statement of other eye witness i.e. PW-9. 17. Now, I will deal with the second point raised by learned counsel for the petitioner that both the learned Courts below erred in not appreciating that the prosecution was not able to prove that the accident took place on account of rash and negligent driving of the accused as it had not come in the testimony of PW-8 and PW-9 that the accident took place due to rash and negligent driving of the accused. In support of his arguments, Mr. Deepak Kaushal, learned counsel for the petitioner has relied upon the judgment of Hon’ble Supreme Court in State of Karnataka Vs. Satish, (1998) 8 Supreme Court Cases 493. 18. In my considered view, there is no merit in the said contention of learned counsel for the petitioner also. A perusal of the statements of PW-8 and PW-9 demonstrates that both these witnesses have categorically stated that the scooter in question was being driven in high speed by the accused who struck the same against the complainant as a result of which the complainant fell down and as far as grievous injury caused to the victim is concerned, the same has been duly proved on record by the prosecution on the strength of statement of PW-5 Dr. Amitab Jain who had medically examined the injured after she was taken to Civil Hospital Paonta Sahib after the accident. I have already held above that there is no perversity with the findings returned by both learned Courts below that it was the accused who was driving the scooter at the time when the accident took place. Besides this, the accident has not taken place at a spot which was isolated, not frequented by public at large where vehicles are in routine driven in high speed. In the present case, as is evident from the spot map, the accident has taken place at a spot which was frequented by the general public, where there were houses and shops in vicinity as well as a Government Senior Secondary School. From this, it is apparent that the place was frequented by public including students. In such circumstances, a person who is plying a vehicle is bound to drive the same safely and not rashly and negligently, which means that a driver is not supposed to drive his vehicle in high speed. 19. In State of Karnataka Vs. Satish, (1998) 8 Supreme Court Cases 493, Hon’ble Supreme Court was dealing with a matter wherein a truck turned turtle while crossing a “Nalla” and allegation against the driver was that the accident took place as the driver was driving the vehicle at a high speed. In the background of factual controversy involved in the said matter, the Hon’ble Supreme Court held: “4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” 20. Coming to the facts of the present case, herein the accident has not taken place at a secluded road but in the midst of populated place wherein besides shops and residential houses even Government Senior Secondary School was situated. Both PW-8 and PW-9 have categorically stated that the accident took place as the scooter was being driven by the accused in high speed. As has been held by the Hon’ble Supreme Court high speed is a relative term. In the present case, the prosecution has placed on record material to establish that this high speed in the facts and circumstances of the case amounts to “negligence” and “rashness” because it stands established on record by the prosecution that the scooter was being driven by the accused in high speed in a place frequented by public at large. Therefore, it is not as if the prosecution has not brought on record the material to establish as to what was meant by “high speed”. Thus, there is no merit in the contention of the learned counsel for the petitioner that there were perversity in the judgments passed by both learned Courts below to the effect that they erred in not appreciating that the prosecution had not proved the rashness or negligence of the accused on record. 21. Therefore, in view of the discussion held hereinabove, it cannot be said that the findings of conviction returned against the accused by learned Courts below are perverse or not borne out from the records of the case. 21. Therefore, in view of the discussion held hereinabove, it cannot be said that the findings of conviction returned against the accused by learned Courts below are perverse or not borne out from the records of the case. Thus, as there is no merit in the present revision petition, the same is accordingly dismissed, so also the pending miscellaneous applications, if any.