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2023 DIGILAW 500 (UTT)

Virendra Kumar v. State of Uttarakhand

2023-08-29

PANKAJ PUROHIT

body2023
JUDGMENT : This Criminal Revision is directed against the judgment and order dated 25.11.2013 passed by the learned Sessions Judge, Tehri Garhwal in Criminal Appeal No. 63 of 2012, Virendra Kumar and another Vs. State of Uttarakhand, whereby, the learned Sessions Judge Tehri Garhwal affirmed the judgment and order dated 26.10.2012 passed by the learned Judicial Magistrate/Civil Judge (Senior Division), Tehri Garhwal in Criminal Case No. 190 of 2012, State Vs. Virendra Kumar and another, whereby, the revisionists-accused were convicted under Sections 279, 304-A IPC and were sentenced under Section 279 IPC for a term of three months’ simple imprisonment and a fine of Rs. 1000/-each, with default stipulation of 15 days’ additional simple imprisonment; two years’ simple imprisonment under Section 304-A IPC and a fine of Rs. 1000/-each, with default stipulation of 15 days’ additional simple imprisonment. 2. As per the case of the prosecution a Tehrir (Ext.A1) was given to Incharge, Police Outpost Pipaldali, Police Station New Tehri, District Tehri Garhwal against the driver and conductor (the present revisionists-accused), by informant-Dinesh Lal S/o Babu Ram (PW-3) with the allegations that on 03.08.2009 he alongwith his sister-in-law Vimla Devi @ Pingla Devi W/o Shri Ram Lal, R/o Village Rangeli, Badoliya, Patti Khas, District Tehri Garhwal boarded a Roadways bus No. UK-07-PA-0403 to Cholgaon Hospital; the aforesaid bus was being driven by its driver very rashly and negligently. When it reached near Government Primary School Cholgaon at about 09:45AM, due to jerk, door of the bus was opened and his sister-in-law fell out of the bus and came under the rear wheels of the bus and her head was crushed, and she died on the spot. On the aforesaid tehrir, the chick first information report (Ext. A7) on 03.08.2009 at 13:05 hours, was lodged in Police Outpost Pipaldali, Police Station New Tehri and a Case Crime No. 1428 of 2009 under Sections 279, 304-A IPC was registered against the driver and conductor of the aforesaid bus i.e. present revisionists-accused. The inquest report (Ext.A10) was prepared on 03.08.2009, postmortem (Ext. A3) was conducted on 03.30 p.m. and the cause of death was shown as asphyxia and hemorrhage. 3. After investigation the charge-sheet was submitted against the revisionists-accused and the cognizance was taken by the learned Judicial Magistrate Tehri Garhwal on 20.11.2009 and a Criminal Case No. 1365 of 2009 (New No. 190 of 2012), State Vs. A3) was conducted on 03.30 p.m. and the cause of death was shown as asphyxia and hemorrhage. 3. After investigation the charge-sheet was submitted against the revisionists-accused and the cognizance was taken by the learned Judicial Magistrate Tehri Garhwal on 20.11.2009 and a Criminal Case No. 1365 of 2009 (New No. 190 of 2012), State Vs. Virendra Kumar and another was directed to be registered and revisionists-accused were summoned to face the trial. 4. After complying with the procedural necessity of supplying the prosecution documents to the revisionists-accused, their statements were recorded under Section 251 Cr.P.C., to which, they pleaded not guilty and stated that the case of the prosecution was lodged against them wrongly. 5. The prosecution has examined as many as 09 witnesses in order to substantiate the charges of rash and negligent act and driving and thereby causing death of Vimla Devi @ Pingla, such as PW-1 Parmanand, PW-2 Sumer Chand Kumai, PW-3 Dinesh Lal (informant), PW-4 Mohan Singh, PW-5 Gambhir Singh Rawat, PW-6 Dr. Sanjay Kansal, PW-7 SI Balwant Singh, PW-8 Constable Manvar Singh (scribe of the Tehrir ) and PW.-9 SI Sunil Rawat (Investigating Officer of the case). 6. It is relevant to mention here that PW-2 Sumer Chand Kumai stated in his statement that on 03.08.2009 at about 9:00 am, he was going from Gadolia to Tipri, he boarded the aforesaid Roadways bus from Gadolia to Tipri, the informant and the deceased were also sitting in the said bus. Before Cholgoan at Government Primary school, the bus was being driven rashly and negligently and the door of the bus was also open; all of a sudden deceased-Vimla Devi fell out of the bus and her head crushed by bus, due to which she died on the spot. 7. PW-3 informant (Dinesh Lal) also supported the version of the FIR. 8. PW-5 Gambhir Singh Rawat stated in his evidence that he was posted as Senior Foreman in Uttarakhand Transport Corporation. On 10.08.2009, he inspected vehicle, being bus No. UK07PA-0403, the said vehicle was of Uttarakhand Transport Corporation, the condition of chassis, engine, brake system, steering, transmission, suspension, tyre were good, side mirror good, but the latch of the door was loose, the inspection report was prepared in his handwriting and signature. On 10.08.2009, he inspected vehicle, being bus No. UK07PA-0403, the said vehicle was of Uttarakhand Transport Corporation, the condition of chassis, engine, brake system, steering, transmission, suspension, tyre were good, side mirror good, but the latch of the door was loose, the inspection report was prepared in his handwriting and signature. He further deposed in his evidence that if the bolt of the door was loose, it is the duty of the driver and conductor to check the door and it established the rash and negligence of the revisionists-accused. 9. After recording the evidence of the prosecution witnesses, the statements of revisionists-accused were recorded under Section 313 Cr.P.C. In his defence the revisionist-accused-Viresh Tyagi stated that when the stoppage of deceased was near, she got up and stood up at the window, whenever the passengers comes near, she used to do the preparation for getting down. He further stated in his defence that the deceased Vimla Devi was standing at the window not at the door. He asked her not to stand there. It was the duty of the conductor to check the system of the vehicle so that there should not be any accident because he knows all the consequences. In his defence the revisionist-accused-Virendra Kumar had come up with a case of total denial and had stated that he had falsely been implicated by the prosecution. No defence evidence was led by the revisionists-accused to prove their case. 10. The learned trial court after examining the evidence of the prosecution witnesses and perusal of the documentary evidence came to this conclusion that the prosecution succeeded in proving the charges against the revisionists-accused beyond all reasonable doubt and convicted them under Section 279 and 304-A IPC and sentenced them as stated in para no.1 of this judgment, vide order judgment and order dated 26.10.2012. 11. The revisionists–accused challenged their conviction and sentenced by preferring a Criminal Appeal No. 63 of 2012, Virendra Kumar and another Vs. State of Uttarakhand, in the court of learned Sessions Judge, Tehri Garhwal. It is contended by the revisionists-accused in their appeal that the learned trial court did not appreciate the evidence of the prosecution in right prospective and without application of mind to evidence, collected by the prosecution, they were convicted. State of Uttarakhand, in the court of learned Sessions Judge, Tehri Garhwal. It is contended by the revisionists-accused in their appeal that the learned trial court did not appreciate the evidence of the prosecution in right prospective and without application of mind to evidence, collected by the prosecution, they were convicted. FIR lodged by the PW-3 informant-Dinesh Lal against the revisionists-accused was false and without any basis and there was no credible evidence to punish the revisionists-accused and sentence was on a very higher side, inasmuch as, the negligence, if any, of the revisionists-accused was not that much serious. 12. Heard Mr. Lalit Sharma, learned counsel for the revisionist no.2-Viresh Tyagi (conductor), Ms. Neetu Singh, learned counsel for the revisionist no.1-Virendra Kumar (driver) and Mr. Kuldeep Singh Rawal, learned AGA for the State. 13. It is submitted by the learned counsel for the revisionists-accused that the sequence of the incident reflects that the accident was not caused by the rash and negligent driving of the driver of the vehicle. It is submitted that from the evidence of the prosecution it is clear that the deceased Vimla Devi was standing at the door of the bus just before reaching at her stoppage and suddenly, due to jerk in the moving bus, she fell out of the bus and rear tyre of the bus crushed her head and she died instantly on the spot. The witness PW-3 Dinesh Lal-informant, who was brother-in-law of the deceased-Vimla Devi, stated that his sister-in-law was sitting on the seat just behind the driver and he was sitting on the seat behind the conductor. If the evidence of PW-3 Dinesh Lal is appreciated with the statement of revisionist no.2 Viresh Tyagi (conductor), it would demonstrate that before reaching the bus at the stoppage of the deceased-Vimla Devi, she came near the door of the bus and due to that reason; she fell out of the bus. It is submitted by the learned counsel for the revisionist no.1–Virendra Kumar (driver) that it was not possible for the deceased-Vimla Devi to fell out of the bus from the seat, where she was sitting just behind the driver, therefore, the accident occurred due to her own negligence. It is submitted by the learned counsel for the revisionist no.1–Virendra Kumar (driver) that it was not possible for the deceased-Vimla Devi to fell out of the bus from the seat, where she was sitting just behind the driver, therefore, the accident occurred due to her own negligence. The learned counsel for the revisionist no.1–Virendra Kumar (driver) strenuously submitted that PW-2 Sumer Chand Kumai, an independent witness, also deposed that the road on which the bus was plying, was uneven and with pit holes. She strenuously submitted that since the accident occurred at the door of bus and deceased died of rear tyre of the bus, it cannot be said that the accident occurred due to rash and negligent driving of the bus driver and an alternate argument was also made by the counsel for the revisionist no.1–driver, in any case, if this Court comes to this conclusion that there was rash and negligence on the part of the revisionist no.1-driver of the bus, instead of the sentence of imprisonment of two years; the justice would be met, if fine imposed on the revisionists/accused is increased by modifying the sentence part of the impugned judgments and orders. 14. The learned counsel for the revisionist no.2–conductor submitted that from the entire evidence available on record, only this would be inferred that the deceased was herself negligent while standing at the door of the bus despite having been insisted by the revisionist no.2-conductor not to stand at the door while the bus was moving. He also submitted that the accident was happened due to sole negligence on the part of the deceased-Vimla Devi. It is also argued by the learned counsel for the revisionist no.2–conductor that latch of the door was also loose and suddenly, the door of the bus got opened and since deceased-Vimla Devi was standing at the door of the bus, she fell out of the moving bus. He also made an alternate argument to modify the sentence of imprisonment to that of fine, if this Court comes to this conclusion that the case of rash and negligent act was proved against the revisionist no.2–conductor. 15. He also made an alternate argument to modify the sentence of imprisonment to that of fine, if this Court comes to this conclusion that the case of rash and negligent act was proved against the revisionist no.2–conductor. 15. Per contra, learned counsel for the State supported the judgments and orders passed by the learned Courts below and submitted that the way the accident said to have taken place, it is proved beyond all reasonable doubt that both the revisionists-accused were rash and negligent in their act, which resulted into the tragic death of Smt. Vimla Devi. He submitted that if the condition of the road was not good, it becomes all the more necessary for the driver to drive the vehicle very carefully. If a person slips out of a moving bus, it would prove only the fact that the bus was being driven very rashly and negligently. He further submitted that the sentence imposed by the learned trial court and affirmed by the appellate court need no interference at the fact situation of the present case. 16. I have perused the impugned judgments and orders alongwith the Lower Court Record very carefully and considered the submissions made by the learned counsel for the parties. While sitting in the revisional capacity, this Court should be very slow in appreciation of the evidence, which was concurrently relied upon by both the learned courts below. From the reading of the evidence of the prosecution witness especially PW-2-Sumer Chand Kumai and PW-3-Dinesh Lal, this fact stood proved that the deceased was standing at the door of the moving bus, when it was about to reach to the destination of the deceased-Vimla Devi and suddenly, due to some jerk, the door of the bus opened and she fell out of the bus and crushed by rear tyre of the bus causing her accidental death on the spot. 17. I have perused the technical Inspection Report (Ext.A-2), which was proved by the PW-5 Gambir Singh Rawat, Senior Foreman of Rishikeh Depot, Uttarakhand Transport Corporation. From the technical report it is proved that the latch of the door of the bus was loose. From this evidence it could be inferred that while the bus was moving, due to jerk the latch opened and the door of the bus suddenly got opened and the deceased–Vimla Devi fell out of the bus. 18. From the technical report it is proved that the latch of the door of the bus was loose. From this evidence it could be inferred that while the bus was moving, due to jerk the latch opened and the door of the bus suddenly got opened and the deceased–Vimla Devi fell out of the bus. 18. From the evidence of PW-2 Sumer Chand Kumai it was proved that the road was rough and uneven and full of pit holes. If the evidence of PW-2 is read in the light of the technical inspection report (Ext. A-2), it would be presumed that due to jerk in the moving bus, the door was opened suddenly and the deceased–Vimla Devi, who was standing at the door of the bus, despite stopping her not to do so by the revisionist no.2-conductor, she fell out of the bus. The sequence of the evidence is not proving the rash and negligence either of the driver or of its conductor beyond all reasonable doubt and in this view of the matter; it would be safe to give the benefit of doubt to the revisionists-accused. 19. The res ipsa loquitur is applicable in a civil action under the tort and the same cannot be pressed into the service in a criminal case to prove the negligence. In criminal cases, the burden of proof is much higher than that of in civil matters. In criminal matters, the circumstances against the accused must be proved and established firmly and it must be unerringly pointing towards the guilt of the accused. In this view of the matter, the principle of res ipsa loquitur in stricto sensu shall not apply in cases falling under Section 304-A IPC. In the case of Nanjundappa & Anr. Vs. The State of Karnataka, reported in 2022 Live Law (SC) 489, Hon’ble Supreme Court has held in paras 9 and 10 as under: “9. Here it would be useful to advert to the dictum in the case of Syad Akbar Vs. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar (supra), this Court opined: “29. State of Karnataka in which this Court proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar (supra), this Court opined: “29. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt.” 10. In case of circumstantial evidence, there is a risk of jumping to conclusions in haste. While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts. In the present case however, the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced. As far as the onus of proving the ingredients of an offence is concerned, in the judgment titled as "S.L.Goswami Vs. State of M.P." this Court held: "5 ..... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution........................…" 20. In this view of the matter, it appears that both the learned courts below failed to appreciate the evidence in the light of the observation made herein above, ignoring the evidence of technical inspection report (Ext.A-2) with that of the evidence of prosecution witness PW-2 Sumer Chand Kumai. Thus, there is perversity in the impugned judgments and orders of the learned trial court as well as of the learned appellate court, which resulted into the miscarriage of justice. 21. The upshot of the aforesaid discussions result into this conclusion that the revisionists/accused are entitled to be given the benefit of doubt. 22. In the result, the criminal revision is hereby allowed and the judgment and order dated 25.11.2013 passed by the learned appellate court affirming the judgment and order dated 26.10.2012 passed by the learned trial court are hereby set-aside. The judgment and order dated 26.10.2012 passed by the learned trial court is accordingly set-aside. 23. The revisionists/accused are on bail, they need not to surrender. The bail bonds and sureties are discharged. 24. Let the Lower Court Record of the case be returned to the learned court below for necessary and follow-up actions as per law.