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Himachal Pradesh High Court · body

2017 DIGILAW 933 (HP)

Kishori Lal v. State of H. P.

2017-08-16

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Judgment dated 16.3.2007 passed by learned Addl. Sessions Judge, Solan, in Cr. Appeal No. 4-S/1 of 2006 is under challenge in this petition. It is seen that learned lower appellate Court has affirmed judgment dated 27.7.2006 passed by learned Sub Divisional Judicial Magistrate, Arki, District Solan in Cr. Case No. 29/2 of 2003, whereby the accused has been convicted under Sections 279, 337 and 304-A IPC and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 500/- under Section 279 IPC, three months rigorous imprisonment and to pay a sum of Rs. 500/- as fine under Section 337 IPC and to undergo rigorous imprisonment for a period of one 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. year and to pay a sum of Rs. 1,000/- as fine under Section 304-A IPC. 2. In a nut shell, the case of the prosecution against the accused is that on 25.10.2002 at Kararaghat-Kashlog road in District Solan, he was driving jeep No. HP-07-4427 carrying the injured witnesses PW-1 Ram Dass, PW-4 Kalawati and one Jeet Ram as well as other persons, eight in all, in a rash and negligent manner and thereby the vehicle met with an accident at Gaggal as he failed to control the same. The vehicle rolled down 250 meters below the road. While Sh. Jeet Ram has succumbed to injuries received in the accident, the remaining persons travelling in the illfated jeep received injuries, simple in nature on their person. The police of PS Darlaghat was informed by deceased Jeet Ram around 9:30 AM about this accident. The information so given was reduced into writing vide docket No. 6 Ext. PA. The police swung into action. Consequently, the statement of injured Kalawati (PW- 4) vide Ext. PW-4/A was recorded on the same day. On the basis of Ext. PW-4/A, FIR Ext. PW-5/A was registered in the Police Station qua this accident. The investigation was conducted by SI/SHO Chain Ram (PW-8). 3. On the completion of investigation, report under Section 173(2) Cr.P.C. was filed against the accused in the Court of learned Judicial Magistrate Ist Class, Arki, District Solan. On the basis of Ext. PW-4/A, FIR Ext. PW-5/A was registered in the Police Station qua this accident. The investigation was conducted by SI/SHO Chain Ram (PW-8). 3. On the completion of investigation, report under Section 173(2) Cr.P.C. was filed against the accused in the Court of learned Judicial Magistrate Ist Class, Arki, District Solan. Learned Magistrate, on consideration of the report and the documents annexed therewith and on finding a prima-facie case for the commission of an offence punishable under Sections 279, 337 and 304-A IPC made out against the accused had put the notice of accusation to him accordingly. The accused, however, pleaded not guilty to the notice and claimed trial. 4. The prosecution in support of its case has examined 8 witnesses in all. The material prosecution witnesses are PW-1 Ram Dass and PW-4 Kalawati, who were the occupants of the ill-fated jeep. The remaining witnesses, including PW-8 SHO Chain Ram are, however, formal. The motor mechanic who has allegedly inspected the ill-fated jeep though would have been a material witness to this case, however, he died well before the prosecution evidence was recorded in the trial Court. Anyhow, on the appreciation of the evidence produced by the prosecution and examining the defence of the accused as emerges from the trend of cross-examination of prosecution witnesses as well as the statement under Section 313 Cr.P.C, learned trial Court has arrived at a conclusion that the prosecution has proved its case against the accused beyond all reasonable doubt. He, as such, was convicted for the commission of offence punishable under Sections 279, 337 and 304-A IPC. 5. Learned lower appellate Court has affirmed the findings of conviction and sentence recorded against the accused by learned trial Court and dismissed the appeal. 6. The legality and validity of the findings of conviction and sentence passed by both Courts below has been questioned on the grounds inter alia that highly contradictory evidence produced by the prosecution has been relied upon to record the findings of conviction and sentence against the accused. The statement of accused under Section 313 Cr.P.C. was not recorded in accordance with law. There being no evidence to show that the vehicle was being driven by the accused in a rash and negligent manner, no findings of conviction could have been recorded against him. 7. The statement of accused under Section 313 Cr.P.C. was not recorded in accordance with law. There being no evidence to show that the vehicle was being driven by the accused in a rash and negligent manner, no findings of conviction could have been recorded against him. 7. On the other hand, the defence version that the accident had taken place on account of mechanical fault, has not been appreciated at all. The plea that the accident occurred due to break failure has also not been considered. 8. On hearing Mr. Virender Thakur, Advocate, learned counsel representing the accused and also learned Additional Advocate General on behalf of the respondent-State, the only question, which needs adjudication in this petition, is that the findings of conviction recorded against the accused are not based on proper appreciation of evidence available on record and rather based upon conjectures, surmises and hypothesis. However, before coming to adjudication of such controversy, it is desirable to take note as to what constitute an offence punishable under Sections 279 and 337 IPC in legal parlance. This Court in a recent judgment in Criminal Revision No.158 of 2009, titled Suresh Kumar versus Sate of H.P., decided on 19.5.2017, after taking note of the law laid down by a Co-ordinate Bench in Raj Kumar versus State of H.P., 1997 (2) Shim.L.C., 161 has held that mere rashness and negligence is not sufficient for recording the findings of conviction against an offender, however, it is criminal rashness and criminal negligence on the part of the accused which constitutes an offence punishable under the Sections ibid. Additionally, the prosecution is also required to plead and prove that it was an act on the part of the accused alone responsible for the accident in question. It has also been held in the judgment supra that the speed of the offending vehicle alone is no criteria to come to the conclusion that the same was being driven in a rash and negligent manner but other factors, such as, density of traffic, width of the road and the attempt of the driver to take precautions to avert the accident etc., also need to be taken into consideration. 9. Now if adverting to the case in hand, there is no denial to the accident of jeep No. HP-07-4427 occurred at a place, namely, Gaggal on Kararaghat Kashlog road on 25.10.2002 around 9:30 AM. 9. Now if adverting to the case in hand, there is no denial to the accident of jeep No. HP-07-4427 occurred at a place, namely, Gaggal on Kararaghat Kashlog road on 25.10.2002 around 9:30 AM. The injured witnesses PW-1 Ram Dass and PW-4 Kalawati along with deceased Daya Ram and other persons, total 8 in number were travelling in the ill fated jeep at the time of accident. The spot map Ext. PW-8/A reveals that it is a single road having only 8 ft. pucca width. The road passes through hilly terrain. On such a road, it is expected from the driver of a vehicle to drive the same cautiously and in a normal speed as well as by having full control over the vehicle. 10. The pivotal question around which the entire controversy revolves is the manner in which the accused was driving the ill-fated jeep at the time of the accident. The prosecution, in order to prove its case that the accused was driving the ill-fated jeep in a rash and negligent manner, has examined the injured witnesses PW-1 Ram Dass and PW-4 Kalawati. They both hail from rural area and as such are simpleton and rustic villagers. It is for this reason they failed to depose about the speed of the illfated jeep. They expressed their ignorance as to what constitutes rash and negligent driving and the gear system etc. in a vehicle. It is for this reason they expressed their inability, including telling as to in which gear the vehicle was being driven by the accused at the relevant time. Though, both have stated in one voice that the accused was driving the vehicle at high speed, however, they failed to disclose the exact speed of the vehicle at the time of accident. Therefore, their testimony is not sufficient to conclude that the rashness and negligence on the part of the accused was the cause of the accident. The testimonies of PW-1 Ram Dass and PW-4 Kalawati is not at all sufficient to arrive at a conclusion that the accused was driving the ill fated jeep in a rash and negligent manner and it is such driving attributed to him was sole cause of the accident. 11. The report of the mechanic Ext. The testimonies of PW-1 Ram Dass and PW-4 Kalawati is not at all sufficient to arrive at a conclusion that the accused was driving the ill fated jeep in a rash and negligent manner and it is such driving attributed to him was sole cause of the accident. 11. The report of the mechanic Ext. P-8 would have thrown some light on the manner in which the accident has occurred, however, the prosecution could not prove the same in accordance with law because the author thereof Sh. Daya Ram Chandel had expired before his statement could have been recorded by the Trial Court. It is the I.O., while in the witness-box has produced this document in evidence stating that since the similar reports were obtained from deceased Daya Ram Chandel, the motor mechanic in other cases, therefore, he was well conversant with his hand writing and signatures. It does not discharge the onus upon the prosecution to prove this document in accordance with law. As a matter of fact, even if Daya Ram aforesaid has expired well before recording of the prosecution evidence, the prosecution could have proved this document by way of producing secondary evidence. Such a course, however, has not been resorted to, therefore, it cannot be said that the vehicle was not having any mechanical fault and its all systems were working properly. It is only with the help of such evidence, the Court would have formed an opinion that it was rash and negligent driving on the part of the accused and noneelse. No doubt, there is nothing on record that the accident occurred either on account of failure of break or some mechanical defect developed in the ill-fated jeep and as such, the defence of the accused as emerges from the trend of cross-examination of prosecution witnesses that the accident occurred on account of mechanical fault seems to be not justified, however, the cause of accident was rash and negligent driving on the part of the accused alone onus was on the prosecution to prove so and as the prosecution has failed to discharge the same, therefore, findings of conviction could have not been recorded against the accused. 12. Surprisingly enough, both Courts below should have given weight age to the report of the motor mechanic Ext. 12. Surprisingly enough, both Courts below should have given weight age to the report of the motor mechanic Ext. P-8 to arrive at a conclusion that the cause of accident was rash and negligent driving on the part of the accused, however, erroneously because this document being not legally proved on the record could have not been relied upon against the accused. Therefore, if this document is excluded from the prosecution evidence, there remains only the testimony of PW-1 Ram Dass and PW-4 Kalawati, which for the reasons recorded hereinabove, is hardly sufficient to record findings of conviction against the accused. The evidence as has come on record by way of remaining prosecution witnesses was formal in nature which could have at the most been used as link evidence, however, only when the prosecution had otherwise proved its case against the accused beyond all reasonable doubt. 13. The reappraisal of the given facts and circumstances and also the evidence available on record leads to the only conclusion that both the Courts below have failed to appreciate the evidence in its right perspective. It has vitiated the proceedings in the trial Court and also the judgment of conviction and sentence passed against the accused. Learned lower appellate Court has also failed to appreciate the evidence in its right perspective, therefore, the impugned judgment which is not legally sustainable should be quashed and set aside by this Court while exercising its revisional jurisdiction. 14. This petition, as such, is allowed. Consequently, the impugned judgment is quashed and set aside and the accused is acquitted of the notice of acquisition put to him by learned trial Court. The bail bonds are cancelled and discharged. The amount of fine, if any, deposited be refunded to the accused under proper receipt. The revision petition is accordingly allowed and disposed of.