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Himachal Pradesh High Court · body

2019 DIGILAW 1007 (HP)

State Of Himachal Pradesh v. Subhash Verma

2019-07-23

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur J. Both appeals, arising out of same judgment, are being decided together by this common judgment, as findings of lower Courts are to be appreciated on the basis of common evidence, facts and circumstances. 2. Subhash Verma, respondent in Criminal Appeal No. 466 of 2007, was driver and Duni Chand, respondent in Criminal Appeal No. 478 of 2007, was conductor of bus involved in the accident. 3. Prosecution case, in brief, is that on 7.10.2003 a telephonic information was received from anonymous person in Police Station Kotkhai, informing thereby to the Police that one person, who was travelling on the roof of bus and brought for treatment to Kotkhai, on receiving injuries, had expired. After receiving this information Investigating Officer PW-7 H.C. Ranjeet Singh rushed to the hospital along with Police officials and had recorded statement Ex. PW-7/A of complainant PW-8 Het Ram under Section 154 Cr.P.C. and sent the same as Ruka to Police Station, Kotkhai for registration of FIR, whereupon FIR Ex. PW-6/A was registered under Sections 279, 336, 201 and 304-A IPC read with Sections 181, 134 and 177 of M.V. Act. PW-8 Het Ram in his statement Ex. PW-7/A had stated that on 7.10.2003 at about 10:30 A.M. private bus No. H.P.-09A-0698 was boarded by him along with Girdhari Lal, Bhoop Singh, Pawan and Kuldeep for going to Shimla and when they were boarding the bus, conductor of the bus had told them that there is no space inside the bus and had asked to sit on the roof of the bus, whereupon, he along with his cousin Girdhari Lal, Bhoop Singh, Pawan and Kuldeep had sat on the roof of the bus after taking tickets from the conductor and after travelling a distance of about 2 Kilometers when the driver was driving the bus in high speed, a branch of the tree had hit the head of his cousin Girdhari Lal whereupon Girdhari Lal had fallen unconscious and blood was also oozing out of the injury on his head and thereafter with great difficulty by raising hue and cry bus was got stopped and Girdhari Lal was brought for treatment to Kotkhai. Driver of the bus had dropped them on the upper side of the hospital on the road and had left towards Shimla. Girdhari Lal was declared brought dead by the Medical Officer in the hospital. 4. Driver of the bus had dropped them on the upper side of the hospital on the road and had left towards Shimla. Girdhari Lal was declared brought dead by the Medical Officer in the hospital. 4. After registration of FIR, investigation was carried on. During investigation site map Ex. PW-7/O was prepared, bus tickets of the complainant and other passengers were taken into possession vide memo Ex. PW-1/B. Bus involved in the accident along with documents was seized vide memo Ex. PW-2/A and the driving lisence Ex. PW-7/V of respondent Subash was also taken into possession vide memo Ex. PW-2/B. Form No. 25.35(1) A, Ex. PW-7/M, was filled in with respect to deceased Girdhari Lal and after his postmortem Ex. PW-5/A, his dead body was handed over to complainant PW-8 Het Ram vide memo Ex. PW-1/A. On completion of investigation challan was presented in the Court against the respondents. On finding prima facie complicity of respondents in commission of offence, Notice of Accusation under Sections 279 and 304A IPC read with Sections 134 and 177 of Motor Vehicles Act was put to respondent Subhash Verma and under Section 336 of IPC read with Sections 181 and 177 of Motor Vehicles Act was put to respondent Duni Chand. 5. On conclusion of trial, respondent Subhash Verma was convicted under Sections 279 and 304-A IPC and was sentenced to undergo simple imprisonment for one month under Section 279 IPC and 6 months under Section 304-A IPC. Whereas, respondent Duni Chand was acquitted. 6. For proving its case, prosecution has examined nine witnesses. Whereas after recording statements under Section 313 Cr.P.C., initially, respondents had taken time to lead evidence in defence, however, lateron no defence evidence was led on their behalf. 7. So far as the facts that deceased Girdhari Lal while traveling on the roof of bus along with PW-8 Het Ram and others for going to Shimla in Bus No. H.P.-9A-0698 had received received injuries with the branch of tree and was declared brought dead in the hospital and thereafter his body was subjected to postmortem, are concerned, the same stand fully established by the prosecution on record in the statements of PW-1 Kuldeep Chand, PW-3 Pawan Kumar, PW-8 Het Ram and Investigating Officer PW-7 H.C Ranjeet Singh. 8. Undisputedly allowing the passengers on the roof of bus is not only unlawful, but also highly risky. 8. Undisputedly allowing the passengers on the roof of bus is not only unlawful, but also highly risky. It is not expected from conductor, driver or owner of the bus to allow passengers to travel on the roof of the bus. This act itself is a rash and negligent act on the part of person(s), incharge of the bus. In any case, when the passengers are permitted to travel on the roof of the bus, there is increase in quotient of carefulness in the act of driver for driving the bus in such a manner that no harm is caused to passengers being allowed to travel on the roof of the bus. However, before fastening the liability of rash and negligent driving, which caused the death of one passenger, it is incumbent upon the prosecution to ascertain the identity of driver on record beyond reasonable doubt and above all suspicion. 9. In present case, there is no sufficient evidence on record to establish the fact that it was only and only respondent Subhash Verma who was driving the bus at the time of accident in question. Best evidence was the eyewitnesses, who were passengers i.e. PW-1 Kuldeep Chand, PW-3 Pawan Kumar, PW-8 Het Ram and another cogent and reliable witness could have been the owner of the bus PW-2 Surat Ram to prove on record the deployment/employing respondent Subhash Verma as driver with the bus involved in the accident. 10. Surat Ram owner of the bus, has been examined as PW-2, who, in his examination-in-chief, has stated that vehicle along with documents was taken into possession in his presence vide seizure memo Ex. PW-2/A, which was signed by him and PW-9 Vijay Kumar and the vehicle and documents were produced by Duni Chand and the police had also taken into possession the lisence of respondent Subhash Verma vide memo Ex. PW-2/B in his presence. In crossexamination he has admitted that vehicle was taken into possession by Police after 15 days of the accident. He is completely silent about the deployment of Subhash Verma and Duni Chand as driver and conductor of the bus involved in the accident on the date of accident. Neither any oral nor any documentary evidence has been proved on record by prosecution through this witness or otherwise, so as to establish that Subhash Verma and Duni Chand were driver and conductor of the bus. Neither any oral nor any documentary evidence has been proved on record by prosecution through this witness or otherwise, so as to establish that Subhash Verma and Duni Chand were driver and conductor of the bus. Even the bus in question was not taken in possession from Subhash Verma, but from Duni Chand. 11. For proving seizure of the bus and its documents, son-inlaw of owner PW-9 Vijay Kumar has also been examined. In his examination-in-chief, he is also completely silent, not only about the identity of the driver, but also the fact that who were the driver and conductor, deployed by the owner to drive the bus involved in the accident. Rather in his cross-examination, he has stated that some Bitu was driver of the bus involved in the accident. In the entire prosecution case, either in oral evidence or in documentary evidence, there is nothing on record to establish that respondent Subhash Verma is also known as Bitu and Bitu referred in statement of PW-2 Vijay Kumar and respondent Subhash Verma are one and the same person. Prosecution has also not made any effort like re-examining the witnesses to clarify the facts brought on record by witnesses in cross-examination. Investigating Officer, PW-7 H.C. Ranjeet Singh is also completely silent about the information and manner from which he came to know that Subhash Verma was the driver of the bus involved in the accident at the relevant point of time. Only in his cross-examination, he has stated that he had inquired about the driver and conductor from the respondents as well as their owner, but PW-2 Surat Ram is silent about this. 12. So far as the identity of driver and conductor by the spot witnesses is concerned, that is also not reliable despite the fact that PW-1 Kuldeep Chand in his examination-in-chief has stated that driver of the bus was respondent present in the Court and in his crossexamination he has denied the suggestion that he was not driving the bus. 13. Pw-3 Pawan Kumar was declared hostile for resiling from his earlier statement recorded under Section 161 Cr.P.C and was subjected to cross-examination. In his examination-in-chief he has stated that he did not remember the names of driver and conductor. 13. Pw-3 Pawan Kumar was declared hostile for resiling from his earlier statement recorded under Section 161 Cr.P.C and was subjected to cross-examination. In his examination-in-chief he has stated that he did not remember the names of driver and conductor. However, in cross-examination by learned Public Prosecutor, he has stated that name of driver was Subhash and that of conductor was Duni Chand and the accident had taken place on account of rash and negligent act of the driver and conductor. He has further stated that driver and conductor had asked them to sit on the roof of the bus. In further cross-examination by defence he has admitted that names of driver and conductor were told to him by the Police at Kotkhai. This witness has not identified the respondents in the Court, but opted to remain silent on this count. Contrary to prosecution case he has also stated that not only conductor but driver had also asked to sit on the roof of the bus. 14. Pw-8 Het Ram complainant, who is cousin of deceased, in his examination-in-chief, has claimed that respondents were driver and conductor of the bus, but he has identified conductor Duni Chand as driver. He has claimed that conductor Duni Chand had issued tickets to them on the roof of the bus, but Duni Chand has been identified by him not as conductor, but as driver. 15. For the aforesaid evidence on record with regard to identity of respondents, it can't be said with certainty that it was respondent Subhash and only Subhash who was driving the bus on the date of accident. As referred supra in prosecution evidence, it has come on record that some Bitu was driver of the bus at the relevant point of time. Therefore, for want of specific cogent, reliable and convincing evidence with regard to identity of respondent Subhash Verma as driver of the bus, I find it difficult to convict him, as a driver of the bus involved in the accident. In view of nature and quality of evidence on record, he is entitled for benefit of doubt, therefore, findings of learned Sessions Judge on this count are upheld and acquittal of respondent Subhash Verma is affirmed. 16. In view of nature and quality of evidence on record, he is entitled for benefit of doubt, therefore, findings of learned Sessions Judge on this count are upheld and acquittal of respondent Subhash Verma is affirmed. 16. So far as respondent Duni Chand is concerned, he was acquitted by trial Court and the notice of accusation put to him was under Section 336 IPC read with Sections 181 and 177 of Motor Vehicle Act. These offences are cognizable and bailable. The judgment by trial Court was passed on 17.10.2006. No doubt Section 378 of Cr.P.C. providing appeal from an order of acquittal passed by Magistrate to the Court of Sessions, was amended w.e.f. 23.6.2006, however, the said appeal was available in respect of the cognizable and non-bailable offences and therefore, no appeal with respect to offences involved in the present case from acquittal by the Magistrate was permissible to the Court of Sessions but to High Court. However, State, instead of assailing the acquittal of respondent Duni Chand by filing an appeal in the High Court, had preferred an appeal before learned Sessions Judge. Despite the fact that learned Sessions Judge was not having jurisdiction, the said appeal has been decided on merits and acquittal of respondent Duni Chand has been upheld by learned Sessions Judge. Against the said judgment passed by learned Sessions Judge, now again appeal has been preferred in this Court. In the given facts and circumstances, as the appeal filed by State before learned Sessions Judge was not maintainable, I doubt the maintainability of present appeal in this Court. 17. In any case, the grounds assigned for acquittal of respondent Duni Chand by learned trial Court as well as learned Sessions Judge are well reasoned, as there is no incriminating evidence against Duni Chand with respect to driving the bus in rash and negligent manner. The bus was being driven by the driver. It is not a case where respondent Duni Chand had forced the driver to allow the passengers to sit on the roof of the bus. The bus was being driven by the driver. It is not a case where respondent Duni Chand had forced the driver to allow the passengers to sit on the roof of the bus. So far as asking the passengers to board the bus by sitting on roof is concerned , the evidence of PW-1 Kuldeep, PW3 Pawan Kumar and PW-8 Het Ram is also sketchy in this regard, as PW-1 Kuldeep in his statement has stated that conductor had asked to sit on the roof, PW-8 Het Ram has also stated that conductor had asked them to sit on the roof of the bus, whereas PW-3 Pawan Kumar has stated that both the driver and conductor had asked them to sit on the roof and in his cross-examination by learned Public Prosecutor he has stated that they themselves had sat on the roof of the bus. With this sketchy evidence it is difficult to hold that it was respondent Duni Chand who had allowed the passengers to sit on the roof. Therefore, I find no infirmity or illegality in acquittal of respondent Duni Chand also. Therefore, acquittal of respondent Duni Chand is also affirmed. 18. Learned Sessions Judge has appreciated the evidence completely and correctly in its right perspective and nothing has been suggested to point out that any admissible evidence has been ignored and inadmissible evidence has been considered. There is nothing to suggest that the impugned judgment has caused any miscarriage or travesty of justice. Therefore, no ground for interference is made out. Accordingly, the appeals are dismissed, so also the pending applications, if any, and bail bonds furnished by or on behalf of respondents are discharged. Records of the Courts below be immediately sent back.