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Uttarakhand High Court · body

2019 DIGILAW 84 (UTT)

Prakesh Singh Papola v. State of Uttarakhand

2019-02-14

SHARAD KUMAR SHARMA

body2019
JUDGMENT : 1. The present Revision has been preferred by the revisionist assailing the judgment and order dated 01-04-2008 of conviction as passed by the Chief Judicial Magistrate Bageshwar in Criminal Case No. 440 of 2007, State Vs. Prakash Singh Papola, under Sections 279 and 304-A of I.P.C. The revisionist has been convicted to undergo a sentence of six months simple imprisonment for commission of an offence under Section 279 IPC with a fine of Rs.1000/-was imposed and for commission of an offence under Section 304-A IPC, the revisionist was sentenced to undergo simple imprisonment for a period of one year with a penalty of Rs.5000/-. Both the sentences were to run concurrently and on failure to deposit penalty, the revisionist was sentenced to further undergo an imprisonment of 30 days for offence under Section 279 IPC and 60 days for offence under Section 304-A of I.P.C. 2. The revisionist being aggrieved against the judgment as rendered by the Trial Court on 01.04.2008 in Criminal Case No. 440 of 2007, State Vs. Prakash Singh Papola had preferred a Criminal Appeal No. 8 of 2008, Prakash Singh Papola Vs. State of Uttarakhand. The Appellate Court too by the judgment dated 26.10.2009, which is under challenge, has confirmed the sentence and the punishment as imposed by the Trial Court against the present Revisionist. 3. The brief backdrop of the case is that as per the story narrated by the complainant Kamla Arya in the F.I.R. No. 13/07 as registered on 16.05.2007, which was registered as Case Crime No.162/07, Police Station Baijnath, District Bageshwar, she has stated that when her father was returning home after purchasing certain goods from the market on 16.05.2007 at about 6:30 p.m., he was walking on his side, while returning back home, near State Bank of India in front of home of Jagdish Lal Shah, a truck bearing Truck No. UA04B-9439, dashed against him and crushed him to death. The case in the F.I.R. was that the accident was seen by Kailash Joshi, Jagdish Lal Shah and Ram Verma, who were present on the spot. Besides, that accident was also witnessed by other people too who were present on the spot. All of them tried to get the truck stopped, but the revisionist, who was driver of the truck is said to have, ran away from the spot with the truck and driven the same towards Bageshwar. Besides, that accident was also witnessed by other people too who were present on the spot. All of them tried to get the truck stopped, but the revisionist, who was driver of the truck is said to have, ran away from the spot with the truck and driven the same towards Bageshwar. The accused, who was driving the truck, bearing Truck No. UA04B 9439 rashly and negligently, had caused the accident resulting into death of father of the complainant Amba Ram as well as another person Lalit Singh. The complainant Kamla Arya is said to have lodged an FIR, registered as Case Crime No. 162 of 2007 under Sections 279 and 304-A IPC, which finds place on record as an FIR Ex. Ka-1. The allegation in the said FIR was investigated upon and charge-sheet No. 11/07 dated 12.06.2007, Ex.Ka-17, has been submitted showing commission of offence under Sections 279 and 304-A IPC. The accused was summoned by the Trial Court vide its order dated 29.08.2007 and the trial was conducted by the Chief Judicial Magistrate. 4. The prosecution in support of their case had produced as many as ten witnesses, namely, PW1 Kamla Arya, PW2 Dhanuli Devi, PW3 Madan Ram, PW4 Suresh Chandra Nayal, PW5 Harish Chandra Pant, PW6 Pankaj Goswami, PW7 Kailash Joshi, PW8 Nand Kishore Juyal, PW9 Dr. Jitendra Bhatt and PW10 Manish Upadhyaya, who had supported the case of the prosecution and the incident of 16.05.2007, commission of said offence and the factum of accident of 16.05.2007. 5. Besides this, other exhibits were also placed on record, those were the photographs as Ex.Ka-2 to Ka-13, postmortem report dated 17.05.2007 of the deceased Amba Ram as Ex.Ka-15, paper No.12-Ka, the charge-sheet as Ex.Ka-17, FIR and the report of inspection conducted by the Inspector Ex.Ka-18, Panchnama as Ex.Ka-19 and Panchnama of the deceased Lalit Singh Ex.Ka-20 and such other documents by the prosecution. 6. 6. The statements of the accused were recorded on 27.11.2007 under Section 313 of Cr.P.C., paper No. 18-Ka, and in the Statement thus recorded, he has admitted the fact that on the date of occurrence, i.e. on 16.05.2007, he was driving the truck bearing Truck No. UA04B/9439, but, he denied the fact that he was driving the truck rashly and negligently and stated that he cannot be made responsible for commission of the offence under Section 279 IPC, because though he admits that he was driving the vehicle with extreme caution, but, as a matter of fact, he has also denied that the accident has been caused by his truck. 7. The learned Trial Court after considering the evidences of the prosecution as well as defence and also the stand taken by the revisionist pertaining to the accident and to the effect that the accident has not been caused by his truck nor he can be held to be responsible for driving negligently, he ought to be acquitted of the offences as registered against him under the charge-sheet Ex.Ka-17. 8. The first question before the learned Trial Court while considering the aforesaid case had determined which was regarding the establishment of the fact of the denial made by the revisionist of the accident being caused by his truck No. UA04B/9439. 9. The learned Trial Court after considering the rival contention and the oral testimony of PW1 Kamla Arya, the complainant and various other evidence and statement of eyewitnesses, who appeared and recorded their statement, which had been brought on record, had come to the conclusion while recording the findings in the judgment on its para 17 and 18 that as a matter of fact on a concise reading of the statement recorded by the evidences produced by the prosecution as well as considering the evidence, the police after lodging the complaint, immediately after 40 minutes of the accident, had arrested the present revisionist. 10. The learned Trial Court has recorded a findings after appreciating the statement of the eye-witnesses who were also produced before the Trial Court as PW5 Harish Chandra Pant on 21.01.2008, PW6 Pankaj Goswami on 21.01.2008 and PW7 Kailash Joshi on 12.02.2008. 10. The learned Trial Court has recorded a findings after appreciating the statement of the eye-witnesses who were also produced before the Trial Court as PW5 Harish Chandra Pant on 21.01.2008, PW6 Pankaj Goswami on 21.01.2008 and PW7 Kailash Joshi on 12.02.2008. Statements of PW5 Harish Chandra Pant, PW6 Pankaj Goswami and PW7 Kailash Joshi read as under:- “PW5 Harish Chandra Pant – ?kVuk ds fnu eSa viuh nqdku esa FkkA rFkk e`rd vEck jke o yfyr flag mQZ yky flag Hkh esjh nqdku esa cSBs FksA rFkk cSBus ds dqN nsj ckn nksuksa yksx esjh nqdku ls lM+d ds fdukjs&2 vius ?kj dks tk jgs FksA rks brus esa x:M+ dh rjQ ls ,d Vªd UA04B/9439 dk pkyd rsth o ykijokgh ls pykrs gq, lM+d ds fdukjs py jgs vEckjke o yfyr flag dks VDdj ekjdj muds Åij ls xkM+h p<+krs gq, Hkkx x;kA ?kVukLFky esjs nqdku ls djhc 10&15 ehVj dh nwjh ij gSA ?kVuk eSusa vius vk¡[kksa ls Lo;a ns[kkA ?kVuk ds ckn eSa viuh nqdku ls lh/ks ?kVukLFky ij x;kß “PW6 Pankaj Goswami – ?kVuk ds fnu eSa vius ?kj ds ckgj vk¡xu esa [kM+k FkkA rks brus esa x:M+ dh rjQ ls ,d Vªd ftldk uEcj UA04B/9439 cM+s rsth o ykijokgh ls pykrs gq, Vªd pkyd us vEckjke o yfyr flag ¼e`rd½ tks vius ?kj dks jksM+ ds fdukjs&2 tk jgs Fks] dks VDdj ekjdj dqpy fn;k] rFkk Vªd pkyd Vªd dks ysdj Hkkx x;k FkkA ?kVuk eSaus vius vk¡[kksa ls ns[khA ?kVuk esjs ?kj ds lkeus dh gSAß “PW7 Kailash Joshi – eSa ml fnu ?kVukLFky ds ikl esa oekZ th dh ToSyjh dh nqdku esa cSBk FkkA rks brus esa x:M+ dh rjQ ls ,d Vªd la- UA04 ifCyd 9439 dk pkyd rsth ls xkM+h pykrs gq, nks O;fDr;ksa dks ftudk uke vEckjke ,oa yfyr flag dks VDdj ekj dj dqpyrs gq, ckxs'oj dh vksj Hkkx x;kA tc eSa ?kVukLFky ds ikl x;k rks eSaus ns[kk fd nksuksa O;fDr;ksa dh e`R;q gks pqdh FkhA rFkk ogk¡ ij [kwu fxjk gqvk Fkk eSaus bl ?kVuk dh lwpuk e`rd dh iq=h deyk rFkk Fkkuk cStukFk dks nhA esjh lwpuk ij dqN nsj ckn iqfyl ?kVukLFky ij vk x;hA ?kVuk gksrs gq, eSus viuh vk¡[kksa ls ns[kh FkhA ?kVuk mDr pkyd dh ykijokgh o rsth ls pykus ls ?kfVr gqbZA ckn esa eq>s irk pyk fd mDr Vªd dks pkyd izdk'k flag pyk jgk FkkAß 11. They had supported the factum of the accident being caused on 16.05.2007 by the truck in question, which was driven by the revisionist. All the witnesses, i.e. PW5 Harish Chandra Pant, PW6 Pankaj Goswami and PW7 Kailash Joshi were the eyewitness of the accident. Hence, the court has drawn the conclusion that the accident was caused by the truck in question which was driven by the revisionist on the said date, i.e. 16.05.2007. 12. The second question, which was considered by the Trial Court, was to the effect as to whether any offence falling within the purview of Section 279 IPC was made out against the revisionist or not and whether the accident has been caused on account of rash and negligent driving of the truck in question. While dealing with the said question, the Trial Court too considered the statement and the oral testimony of the witnesses and after considering the cross-examination of PW5 Harish Chandra Pant, who was the shop owner from whose shop, the deceased had left few moments earlier and who has seen the incident himself because it has occurred at a distance of only about 15 to 20 Meter, from his shop and has supported the case of the prosecution that since there was pendamonium on account of the accident and owing to the statement of the witnesses as well as the statement as recorded in the cross-examination the accident of PW6 Pankaj Goswami and PW7 Kailash Joshi, who too were the eyewitness was proved that accident was caused on account of rash and negligent driving of the truck in question. Rather after going through the record and on scrutiny of the statement as recorded under Section 161 of the Cr.P.C., it leads to an unflinching conclusion and inference can be positively drawn that the truck in question was being driven by the revisionist rashly and negligently, which has resulted into the accident causing death of the father of the complainant and another person Lalit Singh. However, so far as the statement of PW2 Dhanuli Devi, who was the wife of the deceased Ambaram, has specifically stated in her statement that though she has not seen the accident because she reached the spot only after receiving the information about the accident, but, she supported the prosecution story too on the basis of the statement of the eyewitnesses. 13. 13. The prime witness of the accident as would be apparent from the finding of the Trial Court would be PW5 Harish Chandra Pant, the shopkeeper, who in his examination-in-chief, had too supported that both the deceased Amba Ram and Lalit Singh had come to his shop and they were sitting there for some time and after some time they had left the shop and when they were returning back to their home, the offending truck which was driven negligently by the revisionist has dashed against them, crushing them to death. PW5 Harish Chandra Pant in his specific statement has deposed that he has seen the accident from a very short distance of 10 to 15 meters. 14. The learned Trial Court while considering the Ex.Ka-16, which was the site plan, it shows that both the deceased persons, after leaving the shop of PW5 Harish Chandra Pant were rather walking on their side when they met with the accident. The Trial Court has also drawn a conclusion that the truck was being driven on the wrong side rashly and negligently and it has caused the accident. 15. Another important aspect which is to be taken into consideration is that as soon as the accused was arrested on 16.05.2007 at 19:10, after the said accident, vehicle was challaned under Sections 185 and 207 of the Motor Vehicles Act and when he was arrested and as per the observations, which have been made in the documents, it proved that at the time when the accident was caused by the revisionist, it was he, who was driving the offending truck at that time, the said truck was being driven by him in a drunken state. Consequently, the learned Trial Court, after considering the statement and evidence on record vide its judgment dated 01.04.2018 had ultimately concluded that the accident has been caused because of rash and negligent driving of the truck driven by the revisionist in a drunken state and thus has imposed a sentence of six months simple imprisonment for commission of an offence under Section 279 IPC with a fine of Rs.1000/-and as far as offence under Section 304-A IPC is concerned, the revisionist was sentenced to undergo simple imprisonment for a period of one year with a fine of Rs.5000/-. In case of failure to deposit the fine, he was further sentenced to undergo imprisonment for the period of 30 days and 60 days for offence under Sections 279 and 304-A I.P.C. respectively. 16. Being aggrieved against the said judgment, the present revisionist preferred an appeal being Criminal Appeal No. 8 of 2008, Prakash Singh Papola Vs. State of Uttarakhand and the Appellate Court of Sessions Judge, Bageshwar too by the judgment impugned dated 26.10.2009, had affirmed the sentenced as imposed by the learned Trial Court vide its judgment dated 01.04.2008. Consequently, the present Revision. 17. The arguments of the learned counsel for the revisionist, while giving challenge to the judgment impugned in the revision are three-folds. Firstly, that the revisionist cannot be attributed to have committed the offence under Sections 279 and 304-A IPC for the reason that none of the witnesses as produced by the prosecution had succeeded in identifying that the vehicle which was the cause of the accident and which was said to be driven by the revisionist. Secondly, he submits that much credence cannot be placed on the statement recorded under Section 161 Cr.P.C. of the witnesses, which has disclosed his name for the purposes of implicating him for the offence under Sections 279 and 304-A IPC. Lastly, he submits that even if for a moment, if it is accepted that the revisionist had remotely being involved in the commission of said offence by causing the accident dated 16.05.2017, he would be entitled for the benefit of Section 4 of the Probations of Offenders Act, 1958. 18. Let us deal with the issues formulated above. The first issue which has been formulated by this Court pertains to as to whether the revisionist can be attributed to have committed the offence under Sections 279 and 304-A IPC. The basic ground which has been argued in relation thereto by the counsel for the revisionist is that the foundation and the reasoning of the judgment is based upon the scrutiny of the statement of PW5 Harish Chandra Pant, PW6 Pankaj Goswami & PW7 Kailash Joshi. The basic ground which has been argued in relation thereto by the counsel for the revisionist is that the foundation and the reasoning of the judgment is based upon the scrutiny of the statement of PW5 Harish Chandra Pant, PW6 Pankaj Goswami & PW7 Kailash Joshi. Though they have been taken as to be the eyewitnesses of the accident, who claimed to have seen the accident from a distance of about 15 to 20 mtrs., but, they cannot be taken as to be reliable evidence to conclude with the precision that they have actually seen the vehicle being driven by the revisionist. Though, in the statement recorded by the revisionist under Section 313 Cr.P.C., he has stated that he was driving the vehicle on the said date that itself is not a conclusive evidence of his involvement in the accident being caused by him. But a reasonable doubt which could be created is that the eyewitness of the accident cannot be said as to be the exact witness of the accident was actually driven by him seeing the offending vehicle involved in the accident. Even the statement recorded by PW6 Pankaj Goswami, who has submitted that he has seen the truck being negligently driven, it creates a doubt pertaining to his statement with regard to the registration number of vehicles which was said to be involved in the commission of the offence. Because his contention was that he was sitting in the lawn when he saw the offending vehicle causing the accident. Even on scrutiny of the statement of PW6 Pankaj Goswami, if it is scrutinized and the distance from which he has seen the accident, while sitting in the compound of his house, practically, it would not be possible to read the number of the vehicle, even if read the number and further to remember the same with the precision, thus, there is a doubt created pertaining to the involvement of the accident. 19. Another reason which has been recorded by the Courts below in their judgments of conviction is that it was the revisionist who was involved in the commission of the accident because he ought to have stopped the vehicle and should have taken the victim of the accident to the hospital and if had they been granted proper medical treatment at an appropriate time, there could have been a possibility of they being saved. The act of running away from the spot has been taken as to be one of the factors to arrive at a conclusion that the revisionist was responsible for the causing of an offence under Section 304-A IPC. As far as this rational which has been adopted by both the courts below cannot be accepted for the reason being it is a natural phenomena that whenever there happens to be an accident, the vehicle or the Driver driving the vehicle in order to save himself from the wrath of the public at large, normally avoids to stay behind at the place of occurrence and it is quite natural reaction which the revisionist is said to have been charged of to the effect that since he ran away from the spot along with the vehicle proves his involvement in commission of offence. The analogy drawn by the Courts that if the proper medical treatment would have been provided to the deceased victim within time to, they could have been saved, this finding is based on probability and without there being any material evidence or the opinion expressed by the Doctor DW9, looking to the gravity of the injuries which have been suffered by the victim, which was the cause of death have been shown in the post-mortem report on account of blood loss and sudden shock. On overall scrutiny of the judgment which is primarily based upon the evidences of PW5, PW6 & PW7, it has been derived as to be the basis for convicting the revisionist. 20. There is another important aspect which has also been stated by the revisionist in his statement recorded under Section 313 Cr.P.C. to the effect that all the witnesses and their statement which have been taken as to be the basis for conviction and said to have seen the accident from quite a long distance from about 15 to 20 meters. Admittedly, the accident is said to have been caused in front of the State Bank of India, which is a place which is commonly thronged by congregation of various other persons who have not been produced as a witness, who might have actually seen the accident from a shorter distance so as to enable them to identify the driver of the vehicle and the actual involvement of the revisionist. Hence, there is a possibility of doubt which may possibly exist. 21. Hence, there is a possibility of doubt which may possibly exist. 21. Owing to the above, as far as the question No. 1 is concerned, this Court is of the opinion that although the revisionist admits the fact of driving the vehicle at the relevant place but still on an overall scrutiny of the evidence, there is no conclusive proof pertaining to his actual involvement in commission of offence under Section 304-A IPC. 22. Apart from it, even there was a specific ground taken by the revisionist before the Appellate Court that there happens to be contradictions in the statement recorded of PW5, PW6 and PW7 but the argument pertaining to the contradictions in the statements of the witnesses which were recorded has not been dealt with either by the trial Court or by the appellate court rather the Court below have accepted the statement of the aforesaid witnesses as it is to come to the conclusion that the accident have been caused by the revisionist. 23. Coming down to the second question as formulated above pertaining to the interpretation given by the learned Court below to the statement recorded under Section 161 of the Cr.P.C. disclosing the name of the revisionist. But scrutiny of the statement as recorded under Section 161 Cr.P.C. is too have been based upon statements of the prime witnesses of the accident, i.e. PW5, PW6 and PW7, because the statement of the wife, i.e. PW3 cannot be relied with as she was not the eyewitness of the accident and she has visited the spot only when she was informed about the accident. Hence, much reliance on the same cannot be placed. 24. Lastly, the learned counsel for the revisionist has submitted that even if it is presumed that the accident was caused on account of the negligent driving of the vehicle, he would be entitled for protection under Section 4 of the Probation of Offenders Act, 1958. Section 4 of the Probation of Offenders Act reads as under :- “4. 24. Lastly, the learned counsel for the revisionist has submitted that even if it is presumed that the accident was caused on account of the negligent driving of the vehicle, he would be entitled for protection under Section 4 of the Probation of Offenders Act, 1958. Section 4 of the Probation of Offenders Act reads as under :- “4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1) is made, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1), the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order or impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.” 25. Section 4 of the Act observed that if a person is alleged to have involved in the commission of offence, which is not punishable with the penalty with capital sentence or imprisonment for life, the Court may take into consideration, the circumstances of the case, the manner in which, it has been committed, the character of the offender and such other factors as provided under Sub-section (1) of Section 4 of the Act. If a stray finding has been recorded in the judgment of the learned Trial Court that on the date and time of the commission of the offence, the revisionist was in a drunken state, the observation cannot be taken into consideration for the reason that the same has not been depicted either in the statement of the witnesses as recorded before the Court below nor there is any material or medical examination of the revisionist who was arrested on same day to show that he was in an intoxicated stage on the date and time of the so called commission of the offence. What is important to be observed, herein and is to be considered that the plea of protection under the Act of 1958, it was specifically taken by the revisionist before the Appellate Court and the finding to the said effect has been recorded in para 7 of the appellate Court’s judgment. But, unfortunately, the learned Appellate Court has not recorded any finding or reasoning nor has answered the said plea of the protection under the Act of 1958. But, unfortunately, the learned Appellate Court has not recorded any finding or reasoning nor has answered the said plea of the protection under the Act of 1958. Hence, it could not be said that the Appellate Court has rationally approached to consider the evidence or argument extended by the learned counsel for the revisionist, which is normally expected to be performed by the first Appellate Court which is the Court of appraisal of evidence brought on record. 26. Considering the aforesaid aspects and the finding which has been recorded before the Court below, this Court is of the opinion that the sentence as inflicted on the revisionist by the Court of Chief Judicial Magistrate, vide its judgment dated 1st April, 2008 and as affirmed by Appellate Court vide its impugned judgment dated 26October, 2009, deserves to be modified to a certain extent and a benefit of doubt of his involvement in commission of offence, under the above discussed circumstances is to be extended to the revisionist. 27. As far as the punishment inflicted for the commission of an offence under Section 279 IPC, imposing simple imprisonment for six months and a penalty of Rs. 1,000/-and for an offence under Section 304-A I.P.C., simple imprisonment of one year and a fine of Rs.5,000/-is concerned, the same deserves to be modified to the extent that the sentences for simple imprisonment for the above offences are hereby quashed for the reasons assigned in the body of the judgment, however, the punishment imposed pertaining to the imposing of penalty is hereby maintained . 28. The revisionist is on bail pursuant to the order passed th by this Court on 5 November, 2009. He need not to surrender and the bail bonds which has been furnished by him would be released to the sureties, however, the revisionist would deposit the amount of penalty before the Court of Chief Judicial Magistrate, Bageshwar within one month from the date of receipt of the certified copy of the order, failing which, he would serve the sentence of 30 days’ for an offence under Section 279 IPC and 60 days for the offence under Section 304-A I.P.C. as directed by the Trial Court. 29. Subject to the above observations, the Revision is partly succeeds.