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Himachal Pradesh High Court · body

2019 DIGILAW 1164 (HP)

Pawan Kumar v. State of H. P.

2019-08-13

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. Since, Cr. Revision No. 64 of 2009, and, Cr. Revision No. 65 of 2009, arise from a common charge(s), put to both the revisionists, and, whereon, on, conclusion of trial, the, petitioner Pawan Kumar, was, concurrently convicted, and, sentenced hence for his committing offences, punishable under Sections 279, 337, and, under Section 338 of the IPC, whereas, petitioner Guman Singh, stood convicted, and, sentenced, hence for his committing offences punishable, under Section 337, and, under Section 338 of the IPC, thereupon, both the afore criminal revision petitions, are amenable, for, a, common verdict being rendered thereon. 2. In brief, the prosecution case is that Pawan Kumar was driver of bus No. HP-07-5537, whereas, accused Guman Singh was conductor. On 9.2.2001, victim Meena Chauhan had boarded the afore bus at about 4.30 P.M.. along with her daughter, and, had been coming to their house at Khalini. When the aforesaid bus, reached near Khalini in between 4.30 to 5.00 p.m., one more bus bearing No. HP-07-3376 was already standing there. Accused Pawan Kumar, therefore, overtook the afore stationary bus No. HP-07-3376 and placed his bus in front of said bus No. HP-07-3376 and started alighting the passengers. When Victim Meena Chauhan had been alighting accused Guman Singh, all of a sudden blew the whistle and accused Pawan Kumar Started driving the bus without ensuring that all the passengers had alighted. Resultantly, victim Meena Chauhan fell down and sustained injuries on her back and other parts. ASI Amin Chand along with constable Sanjeet Kumar had been patrolling the area and on reaching Khalini, Mangal Singh who was present near a spop at the spot, made statement under Section 154, Cr.P.C., Ex.PW3/A, which was sent to Police Station, and, on the basis of the afore statement, FIR was registered. Thereafter the police carried out the investigations in the case. 3. On conclusion of the investigations, into, the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court. 4. The accused/convicts/petitioners, stood charged, by the learned trial Court, for, theirs committing, offences punishable under Sections 279, 337, and, under Section 338 of the IPC. In proof of the prosecution case, the prosecution examined 10 witnesses. 4. The accused/convicts/petitioners, stood charged, by the learned trial Court, for, theirs committing, offences punishable under Sections 279, 337, and, under Section 338 of the IPC. In proof of the prosecution case, the prosecution examined 10 witnesses. On conclusion of recording, of, the prosecution evidence, the statements of the accused, under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication, in, the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction, upon, the accused/convict/petitioner Pawan Kumar herein, for, his committing, offences, punishable under Sections, 279, 337, and, 338 of the IPC, whereas, accused/convict/petitioner Guman Singh, stood convicted, for, his committing offences punishable under Section 337, and, under Section 338 of the IPC. In appeals preferred therefrom, by the accused/petitioners herein, before, the learned Addl. Sessions Judge concerned, the latter affirmed, the, apposite findings of conviction, and, the, consequent therewith imposition, of, sentence(s), upon, them, as borne, in the judgment, pronounced, by the learned trial Court. 6. The convicts/accused/petitioners herein, stand aggrieved, by the concurrent findings of conviction, recorded, against them, by the learned Courts below. The learned counsel(s), appearing for the accused/petitioners herein, have, concertedly and vigorously contended, qua the findings of conviction, recorded by both the learned Courts below, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by them, of the material on record. Hence, they contend qua the concurrent findings, of conviction hence warranting reversal by this Court, in the exercise of its revisional jurisdiction, and, theirs being replaced, by, findings of acquittal. 7. On the other hand, the learned Additional Advocate General appearing for the respondent/State, has, with considerable force and vigour, contended qua the findings of conviction, recorded, by both the learned Courts below, rather standing based, on a mature and balanced appreciation, by them, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance, of, the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Both the learned courts below, had meted, credence, vis-a-vis, the credible eye witness account, rendered, qua, the relevant occurrence. 8. This Court with the able assistance, of, the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Both the learned courts below, had meted, credence, vis-a-vis, the credible eye witness account, rendered, qua, the relevant occurrence. Moreover, both the learned courts below, had meted an appropriate deference, to the medico legal certificate, embodied in Ex.PW7/A, wherein, the injuries sustained, by the victim, in the relevant mishap are borne, and, are also proven by PW-7, to be entailed, upon, her person, in a road side mishap. 10. The eye witnesses to occurrence, are obviously, the, victim Meena Chauhan (PW-1), and, her daughter Kumud (PW-4), and, one Mangal Singh (PW-1). All the afore in their respectively recorded testifications, borne in their examinations-in-chief, make echoings therein hence bereft of any stark or blatant embellishments, and, improvements, vis-a-vis, their previously recorded statements in writing, nor their respective depositions, suffer from any vice of any inter se contradictions. Consequently, the afore rendered umblemished, and, unstained testifications, vis-a-vis, the genesis of the occurrence, rather enjoin, this Court, to, alike both the learned courts below, mete apt defence thereto. However, the learned counsel appearing for the revisionist, make a serious contention, before this Court, that with intra se contradictions, emanating inter se the testifications rendered by the victim, who stepped into the witness box as PW-1, and, her daughter, who stepped into the witness box, as, PW-4, (a) inasmuch as the former in her testification making an articulation, qua hers, at the relevant stage, being in the process of alighting from the rear window of the bus, (b) yet in contradiction thereto, her daughter, who, stepped into the witness box as PW-4, making articulation, vis-a-vis, her mother, at the relevant time, being in the process, of, alighting from the front window of the bus, hence, thereupon, their respective testification being incredible. However, the afore submission falters, as, (c) both concur, vis-a-vis, in the afore process, the driver/convict, one Pawan Kumar, wanting to adhere, vis-a-vis, the standards of due care, and, caution, comprised in his, without ensuring qua PW-1 hence safely egressing from the bus, (d) his yet speeding the bus, and, hence, PW-1, falling onto the road, from the window of the bus, (e) thereupon, also both obviously concur, vis-a-vis, the convict/revisionist Pawan Kumar, being negligent in driving the offending vehicle. Furthermore, the effect of the afore minimal contradictions intra se, the, depositions rendered by PW-1, and, by PW-4, rather stands subsided, given each ascribing an incriminatory role, to convict/petitioner Pawan Kumar, and, to co-convict Guman Singh, inasmuch, as, both being negligent in ensuring, the, victim rather safely egressing from the bus, and, also given the afore inter se contradiction rather being obviously minimal. 10. Be that as it may, one of the eye witness, to, the occurrence, PW-2 turned hostile, and, the afore factum, is, strived to be capitalized, by the learned counsel appearing for the convicts/petitioners, (a) for theirs, making a submission qua hence the depositions, of, the other eye witness to the occurrence, who rendered, an, unblemished account, vis-a-vis, the occurrence, also coming to engulfed with an aura, of, doubt. However, the mere fact, vis-a-vis, PW-2, reneging from his previous statement, recorded in writing, would not, either undermine, the, efficacy, of, the uneroded testifications, vis-a-vis, the genesis of the occurrence, rather rendered with intra se corroboration, by PW-1, and, PW-4, (b) and, also given upon his reneging, from, his previous statement recorded in writing, and, his thereafter being declared hostile, by the learned trial Court, on, a, request made qua therewith, by the learned APP, and, whereafter, on his being, cross-examined by the learned APP, his acquiescing, to suggestions, vis-a-vis, the investigating Officer, recording his statement, under, Section 161 of the Cr.P.C., (c) and, qua the conductor of the bus blowing the whistle in, a, hurry, (d) the accused being nabbed, on the spot, by the police officials, (e) and, both being escorted to the police station, (f) and, thereafter his further admitting, that, the road, at, the relevant site, of, occurrence, rather being extremely wide, and, the victim falling onto the road, during, the process of hers alighting from the rear window, of, the bus. The afore affirmative answers meted by PW-2, during, the process of his being cross-examined, by the learned APP, do capitalize, an inference qua his therethrough making acquiescences, vis-a-vis, both the convicts/petitioners, at the relevant time, being respectively, the, driver, and, conductor of the offending bus, and, also his ascribing tort, of, negligence, vis-a-vis, the conductor of the bus, besides his ascribing tort, of, negligence, vis-a-vis, the driver of the bus, given his rendering, an, echoing qua the road, at, the relevant site of occurrence, being extremely wide. The effect of the acquiescence rendered by PW-2, during, the course of his being subjected, to, the ordeal, of, a scathing cross-examination, by the learned APP, do reiteratedly, undermine the effects, if any, of, his in his examination-in-chief, reneging, from his previous statement recorded in writing, (a)and, also the afore acquiescence, corroborate, the testifications, rendered, hence with intra se corroborations, by both PW-1, and, PW-4. In aftermath, the testification of PW-2, cannot, in its entirety, be, rid of its sanctity, and, nor merely on anvil, of, his in his examination-in-chief, hence reneging from his previous statement recorded in writing, can bestow any leverage, vis-a-vis, the defence. 11. Moreover, the learned counsel appearing, for the petitioners/accused, contended with ultra vehemence, before this Court, qua, with the recitals occurring in the reverse, of, the apposite MLC, embodied in Ex.PW7/A, and, recitals whereof, are, embossed exhibition mark, Ex.PW1/A, and, theirs making a candid articulation, vis-a-vis, the victim not intending, to, initiate any prosecution, against, the accused/petitioners, (a) and, thereupon, the afore echoings, being readable, qua the entire genesis of the prosecution case, rather obviously foundering. However, the afore submission, is, scuttled by the afore uneroded testifications, rendered by PW-1, and, PW-4, vis-a-vis, the occurrence, and, also a profound reading of the afore signatured recitals hence, by the victim, do not convey, as contended before this Court, vis-a-vis, her acquiescing, vis-a-vis, hers falling onto the road, being a sequel of her negligence, nor any unfoldings emanate therefrom qua hers exculpating, the, incriminatory role, if any, of the accused in the relevant occurrence. In sequel, no capitalization, can be derived, therefrom by the defence. 12. In addition, the learned counsel appearing, for, the convicts/petitioners, proceeded to also contend, before this Court, that, (a) despite the identity of the convicts/ accused remaining unestablished, and, also with the registered owner of the offending vehicle neither being cited as a prosecution witness, nor his stepping into the witness box, (b) for, his rendering, a, testification, vis-a-vis, his engaging the convicts, respectively as driver, and, conductor, upon, the offending bus, (c) thereupon, when no valid test identification parade, was carried, by the investigating officer concerned, and, hence, the ascriptions of incriminatory role, vis-a-vis, the convicts in the relevant occurrence, being construable, to be, a mis-ascription, arising reiteratedly from the prosecution rather failing to prove, the, identity of both the accused. However, the afore submission also staggers, (d) given, during, the course of cross-examination, PW-6, the learned defence counsel meteing, to him, an affirmative suggestion, with candid echoings borne therein, vis-a-vis, his being previously aware, vis-a-vis, the identity of the accused, and, when thereto, an, affirmative answer, stood meted by PW-6, (e) hence the derivative inference therefrom, is, qua the defence acquiescing, vis-a-vis, the identity, and, also the participation of the convicts/petitioners in the relevant occurrence, (f) and, reiteratedly, hence neither there being any necessity for holding any test identification parade nor there being any necessity, for, the owner of the bus, being cited as a prosecution witness, nor there being any necessity qua his rendering a deposition, vis-a-vis, the accused/petitioners, being employed by him, upon, the offending bus, as driver, and, conductor. 13. The convict/petitioner Pawan Kumar, was, at the relevant time, hence, manning the steering wheel, of, the offending vehicle, and, vis-a-vis, him unflinching evidence exists, on record, qua his after being sounded an apt signal, by the conductor/co-convict Guman Singh, comprised, in the latter blowing, the, whistle, and, his thereafter proceeding, to, speed the bus. However, the afore evident proven established factum, does generate, an invincible inference, vis-a-vis, the conductor/convict Guman Singh, hence, deviating, from the standards of due care, and, caution, comprised in his making, a, mis-signal to the driver/convict Pawan Kumar, and, thereupon goading the latter, to depart, from, adherence(s), vis-a-vis, the standards of due care, and, caution, (i) comprised in, despite, the victim PW-1, not safely egressing from the bus, his yet making a false signal, to the convict/petitioner Pawan Kumar, (ii) and, further sequel therefrom, is, qua the convict Pawan Kumar, who was manning the steering wheel, of, the offending bus, rather not deviating from the standards of due care, and, caution, (iii) and, hence both the learned courts below, in convicting, and, sentencing him, appear to irrevere the afore evident proven factum, (iv) unless evidence stood adduced, vis-a-vis, co-accused/petitioner Pawan Kumar, at the relevant site, also from, the mirrors occurring near the driver's seat, despite hence standing facilitated, to sight the happenings, at the rear, of, the bus, and, yet his only meteing deference, to, the mis-signal purveyed, to him, by co-convict, Guman Singh. (v) However, even if the afore facilitation, may be purveyed, to co-convict Pawan Kumar, yet the afore facilitation, cannot spark, any inference, vis-a-vis, his intentionally not deriving, the, apt benefit thereof, and, hence his being penally liable, (vi) unless, evidence stood adduced, vis-a-vis, coconvict/conductor of the bus, one Guman Singh earlier also making false signals, to, him, for the relevant purpose, and, hence there being, a, further onerous injunction, cast upon the co-convict/driver Pawan Kumar, to ensure, the veracity, of, his signals rather by his recoursing, the, afore facilitation. However, the afore evidence, is, amiss, and, when the afore manner of signaling, is, the norm, for, adherence, by, the driver, hence to either stop the bus or to speed it, thereupon, in the driver/convict Pawan Kumar meteing deference thereto, hence, has not committed any penally inculpable offence. 14. For the foregoing reasons, Cr. R. No. 64 of 2009 is allowed, whereas, Cr. R. No. 65 of 2009 is dismissed. Consequently, accused/petitioner Pawan Kumar, is, acquitted of the charged offences. Fine amount, if any, deposited by petitioner Pawan Kumar, be refunded to him. 15. However, in view, of, convict Guman Singh, facing, a, protracted trial, vis-a-vis, the charges, and, when the relevant occurrence, relates to the year 2001, and, since then, and, till date rather 18 years stand elapsed, and, during the said period, the, accused/petitioner Guman Singh, has suffered immense mental pain and agony, thereupon, the sentence as imposed, upon, him by the learned trial Court, for, his committing offences punishable under Section 337 , and, 338 of the IPC is modified, and, he is sentenced to pay a fine of Rs. 50,000/-(Rs. Fifty thousand only). The afore fine amount, be deposited, by petitioner/convict Guman Singh, within two weeks, from, today, before the learned trial Court, and, the learned trial Court is directed, to, thereafter pay the afore deposited fine amount, as, compensation, to the victim, one Meena Chauhan. Consequently, the judgments impugned before this Court, are, modified in the afore manner. All pending applications also stand disposed of. Records be sent back forthwith.