Bhairav Singh vs State
2009 Latest Caselaw 928 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        Crl. Rev. No. 631/2001

                              Judgment reserved on: 20.10.2008

%                             Judgment delivered on: 23.03.2009

Sh. Bhairav Singh                                      ...... Petitioner

                              Through: Mr. S.P. Pandey, Advocate

                         versus

State                                             ..... Respondent

                              Through: Mr. Pawan Sharma, APP

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may

       be allowed to see the judgment?                                 Yes

2.     To be referred to Reporter or not?                              Yes

3.     Whether the judgment should be reported

       in the Digest?                                                  Yes



KAILASH GAMBHIR, J.

*

1. By way of this petition filed under section 397 read with

Sections 401 and 482 of the CrPC the revisionist seeks revision of

the impugned order dated 2/11/2001 passed by the Ld. Addl.

Sessions Judge, whereby the appeal of the present revisionist was

dismissed and the judgment/order dated 27/2/2001 passed by Ld.

Trial court convicting the petitioner for committing offence under

Section 279/304-A IPC and sentencing him to undergo 2 years R.I. &

to pay fine of Rs.5000/- was upheld.

2. The brief facts of the case relevant for deciding the present

petition are that on 1/10/1991 at about 12:30 pm, the deceased Sh.

Sanjay along with his friend Vimal Kaushal, PW1 were going on the

motor cycle bearing registration no. DL 3SC 496 to their college

from Gole Market to know about their result. While passing through

Connaught Place when they reached in front of Super Bazaar on the

outer circle, a DTC bus bearing registration no. DEP 9486 came

from behind at a very fast speed and struck against the said motor

cycle from behind, due to which the motor cyclist, Vimal Kaushal

and the pillion rider Sanjay fell down on the road. While Vimal

Kaushal escaped with minor injuries, the pelvis of the pillion rider

Sanjay was fractured in the said accident, as a result of which he

succumbed to his injuries in the hospital. As per the prosecution the

revisionist was the driver of the DTC bus and he was driving the bus

at a fast speed and also in a rash and negligent manner and after

the accident he fled away from the site of the accident. Upon

receiving information about the said accident, DD No. 8-A was

recorded at the Connaught Place Police Station and S.I. Ajit Singh,

PW7 was entrusted the matter for enquiry. When S.I. Ajit Singh

reached the accident site, he found motor cycle bearing registration

no. DL 4 SC 4196 lying there and he came to know that the injured

had been removed to LNJP Hospital. He then went to the hospital

and there he found the injured Sanjay but he was unfit for giving

statement. Thereafter, he met Vimal Kaushal, who gave his

statement, Ex. PW1/A, wherein he alleged that the accident took

place due to rash and negligent driving of the bus being driven by

Sh. Bhairav Singh, Revisionist in the instant case. Upon statement

of Vimal Kaushal, the police registered a case under Section

279/337 IPC on 1/10/1991 at 2:00pm. Initially the deceased Sanjay

was taken to LNJP hospital and from there he was shifted to Batra

Hospital, where he died on 25/10/1991, whereafter, the case was

converted from one under Section 279/337 IPC to Section 304-A

IPC. During investigation the motor cycle and the bus involved in

the accident were seized by the police and were mechanically

examined and Sh. Bhairav Singh, the petitioner herein was arrested

on 28/10/1991.

3. Mr. S.P. Pandey counsel for the petitioner assailing the

impugned order contended that the impugned order is against the

evidence on record and the settled law and is liable to be set aside.

Strengthening his argument counsel for the petitioner submitted

that there is no connection between the alleged commission of

offence and the evidence of the alleged eye witness and the entire

evidence on record is based on hearsay. The counsel urged that the

Ld. ASJ erred in not giving due weightage to the testimony of the

conductor Babu Ram who deposed as DW1 and also that of ATI Ram

Prasad who deposed as DW 5, wherein they stated that the

offending vehicle started from Mayur Vihar Depot after 12:15 PM

and there are 17 stops in between the Depot and Plaza Cinema

and that the said offending vehicle must have taken at least 1 hour

to reach the accident spot. Mr. Pandey, counsel for the

petitioner thus contended that it is highly improbable that the bus

could reach at the place of the occurrence just within 15 minutes

after having crossed a long distance from Mayur Vihar Depot and

that too after stopping at 17 bus stops. The counsel also

contended that the learned appellate court erred in not

appreciating that In the M.L.C. originally the bus number was

recorded as 9786, which was overwritten and changed to 9486; this

itself casts enough suspicion on the case set up by the prosecution.

The counsel also urged that the testimony of Mr. Vimal Kaushal

PW1 was demolished during cross examination, therefore, same

cannot be relied upon. Elaborating his arguments, the counsel

further maintained that as per the deposition of the I.O PW 7, he

appeared on the accident spot at 1.15 P.M. and found no injured

person at the accident site, but as per the statement of PW1 Vimal

Kaushal the accident took place at 12:30 pm and he remained at

the accident spot for about 20 minutes till he and the deceased

were transferred to LNJP Hospital. Counsel for the petitioner thus

submitted that the theory of the prosecution is based merely on

"EITHER" or "OR" and therefore, merely on presumptions, the

petitioner cannot be held liable for the commission of the said

offence. The counsel further contended that merely because the

bus was being driven at high speed does not mean that the

accused was rash and negligent. The counsel also urged that as per

the testimony of PW-2 Dr. Jain, the deceased Sanjay was alive and

talking at the time when he was brought to the hospital, therefore,

he did not die due to the accident and thus, there is no nexus

between the death of the deceased and the accident, thus, accused

cannot be held liable for offence under Section 304-A IPC. The

counsel further submitted that the I.O. started the investigation

without sending rukka for registration of FIR thus, the entire

investigation was conducted mindlessly and in ignorance of the

procedural formalities. The counsel further contended that refusal

of the petitioner to join TIP cannot go against him when the PW1,

who was the only public witness and also the victim himself stated

that he could not identify the accused person as the bus after

hitting the motorcycle did not stop and continued moving. The

counsel further submitted that the appellate court erred in basing

the entire order in appeal on the testimony of PW1, whose

testimony cannot be relied upon as the same was demolished in the

cross-examination. Counsel for the petitioner also submitted that

the entire conduct of the PW-1 Mr. Vimal Kaushal did not inspire

confidence as his conduct remained totally unnatural and unusual.

He did not meet his so called friend, the deceased Sanjay, after

the occurrence of the accident. He also did not attend his

Teharavi or Uthala ceremony. He did not note down the number

of the bus on any paper. He got himself treated privately from

some Dawakhana near his house. Can a person who claimed

himself to be a friend of the deceased for the past five years from

the date of the accident would behave in the above fashion, the

counsel contended. Counsel thus submitted that no weightage

could be given to the deposition of such a witness who was not

truthful. Counsel for the petitioner also submitted that no damage

to the alleged offending bus was found after mechanical

inspection of the said bus, which is another circumstance to show

that the said bus being driven by the petitioner was not involved

in the accident. Counsel for the petitioner further submitted that

the only independent eye witness of the accident was one Mr.

Praveen Dua who was not produced by the prosecution and

therefore, adverse inference was required to be drawn against the

prosecution for withholding the said material witness. Counsel for

the petitioner also justified refusal on the part of the petitioner

to join the TIP proceedings as PW-1 Vimal Kaushal himself told the

police that he did not see the driver of the offending vehicle.

Counsel for the petitioner also submitted that the accident had

occurred during the day time and as per his own deposition of

PW-7 in cross-examination, the bazaar on that day was open and

therefore, there was lot of hustle and bustle on the road. The

contention of the counsel for the petitioner is that when there was

so much activity at the place of occurrence then why no efforts

were made by the prosecution to produce an independent

witnesses in whose presence the accident might have occurred.

As far as the identification of the petitioner is concerned, no

independent witness was produced by the prosecution to point out

that the petitioner was driving the offending vehicle at the time of

the accident, counsel contended. Counsel for the petitioner thus

urged that the entire investigation is tainted, unreliable and

unrealistic and therefore, the benefit of doubt should go to the

accused. The counsel relied on following judgments in support of

his contentions:

1. Pradeep Kumar vs. State of Haryana - 2000 CRLJ

3394;(P & H)

2. Duli Chand Vs. Delhi Admn-(1997) 4 SCC 122;

3. Mohanta Lal Saha vs. State of W. Bengal - 1968 ACJ

124 (SC);

4. Anandasing Neggi Vs. State- AIR 1969 49;

5. Kurban Hussain Vs. State - AIR 1965 SC 1916;

6. B.C. Goswami vs. Delhi Admn. - AIR 1973 SC 1457;

7. Krisan Vs. State of Haryana - 2003(2) CC cases 354

(P&H);

8. Dhan Bahadur & Ors. Vs. State - 2008 (VI) AD (Delhi)

225;

9. Syad Akbar Vs. State of Karnataka -(1980) 1 SCC 30

5. Refuting the contentions of counsel for the petitioner, Mr.

Pawan Sharma submitted that in the revision there is very limited

scope to interfere with the findings of the fact and for

reappreciation of the evidence as power of the revisional court

cannot be equated with the powers to be exercised by the

appellate court. Counsel for the respondent further submitted that

the petitioner has not been able to point out any glaring feature

of illegality or perversity in the findings arrived at by the trial

court or the reasoning given by the appellate court, and therefore

this court while exercising revisional jurisdiction will not take

another possible view contrary to the concurrent view taken by

both the courts below. Counsel for the respondent further

submitted that the time of incident was reported by the driver of

the motor cycle Mr. Vimal Kaushal at 12.30 P.M. and thereafter,

the I.O. immediately visited the spot, wherefrom he went to the

hospital where the victim was rushed after sustaining injuries in

the accident. Counsel for the respondent further submitted that

no explanation has come forth from the side of the petitioner as to

why the petitioner had refused to join the TIP proceedings and

therefore, adverse inference necessarily has to be drawn against

him. Counsel for the respondent also submitted that much

weightage cannot be given to Ex.DW-5/A as the same was merely a

loose sheet and which is also not carrying any entry of the

offending bus to exclusively show as to when the said bus reached

back after its return from Plaza Cinema. Such loose time sheet

could always be manipulated so as to suit the petitioner with the

help of his own colleagues. Counsel for the respondent further

submitted that the testimony of eye witness Mr. Vimal Kaushal PW-

1 remained totally unimpeached and unrebutted and therefore,

the trial court and the appellate court rightly reached to the

conclusion that the petitioner alone was responsible to cause the

said accident. The counsel relied on the judgment of Duli Chand

Vs.Delhi Admn.-1975 SCC (Cri) 663 in support of his

contentions.

6. I have heard learned counsel for the parties and perused the

record.

7. It is well settled that revisional jurisdiction is of the

supervisory nature exercised by this Court for correcting

miscarriage of justice and the revisional power cannot be equated

with the power of an appellate court. In this regard in State of

Kerala Vs. Putthumana IIIath Jathavedan Namboodiri-AIR

1999 SC 981, the Hon'ble Apex Court observed as under:

"5. Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned Counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate

Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence."

8. As would be seen from the above observation of Supreme

Court a court of revision would not normally reassess evidence and

interfere merely because the view taken by the trial court based on

the available evidence could not be the possible view. In other

words, revision would not lie on the mere ground of mis-

appreciation of evidence unless any glaring feature is brought to

the notice of the revisional court which would otherwise tantamount

to flagrant miscarriage of justice. In this regard in Satyendra Nath

Dutta and Another Vs. Ram Narain - (1975) 3 SCC 398, the

Apex Court observed as under:

"4. In D. Stephens v. Nosibolla [1951] SCR 284 it was held by this Court that the revisional jurisdiction conferred by Section 439 of the Code ought not to be exercised lightly when it is invoked by a private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. "It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice." In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record. In Logendranath Jha and Ors. v. Polailal Biswas [195l] S.C.R. 676 the High Court, at the instance of private complainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision contained in Section 439(4) of the Code cannot be construed to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could, in the absence of any error on a point of law, re-appraise the evidence and reverse the findings of facts, provided only it stops short of finding the accused guilty and passing sentence on him. The order of re-trial based on a re-appraisal of evidence was characterized by this Court as a formal compliance with the requirements of Section 439(4). In K.

Chinnaswamy Reddy v. State of Andhra Pradesh MANU/SC/0133/1962the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. The Court, however, indicated, in order to illustrate, a few of the cases in which the revisional jurisdiction could properly be used. An 'acquittal by a court lacking jurisdiction or excluding evidence which was admissible or relying on inadmissible evidence or where material evidence has been overlooked are some of the cases indicated by this Court as justifying the exercise of revisional powers. In Mahendra Pratap Singh v. Sarju Singh and Anr.

MANU/SC/0398/1967 where the High Court in exercise of its revisional powers had, at the instance of a private party, directed re- trial of the accused, this Court on a review of the previous decisions re-affirmed that the High Court was wrong in entering into minute details of evidence, while examining the decision of the Sessions Court under Section 439(4) of the Code. The last decision to which reference may be made is Khetrabasi Samal etc. v. State of Orissa etc. MANU/SC/0113/1969. The High Court while exercising its revisional

jurisdiction had set aside the order of acquittal on the ground that the Magistrate should not have disbelieved the three eye-witnesses. The High Court sought justification for the course it adopted by observing that the Magistrate had not taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court."

9. It is also well settled that concurrent findings of fact should

not be generally disturbed unless it causes grave injustice. In this

regard in State of Maharashtra v. Jagmohan Singh Kuldip

Singh Anand,(2004) 7 SCC 659; the relevant paragraphs are

reproduced as under:

22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court".

It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn. 2 in which it is observed thus: (SCC p. 651, para 5) "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned

Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

10 . Keeping these well settled principles of law in mind, the

correctness of the order of the appellate court needs to be

examined.

11 . Before dealing with the contentions of the counsel for

the parties, it would be relevant to discuss the conduct of the

petitioner driver. The driver of the bus Shri Bhairav Singh gave

statement before M.M. on 17.4.1997, where he in unequivocal

terms denied that the bus bearing registration no. DEP 9486 met

with an accident on 1.10.91. He further stated that he started

from Mayur Vihar terminal at about 12.15 p.m. and reached Plaza

at about 1.10 P.M. and restarted after 5 to 10 minutes for Mayur

Vihar and reached there at about 2.15 P.M. Toeing his line DW-1,

Shri Babu Ram, conductor of the said bus on the date of the

accident also narrated the same story and denied that the said bus

met with an accident. DW-5 Ram Prashad, ATI Service(DTC)

brought on record the time sheet Ex.DW/5A according to which the

said bus departed from the Mayur Vihar Bus Terminal after 12.15

P.M. for Plaza. Petitioner also examined two independent

witnesses DW-2 Diwan Singh and DW-4 Mohan Singh who also

conformed the version of the petitioner. But it is manifest from the

testimony of the prosecution witnesses especially PW-1 Vimal

Kaushal, who was also the victim to the accident and PW-7, Shri

Ajit Singh, which will be discussed later, that the driver had been

lying from the beginning and he not only took the alibi that the bus

did not meet with an accident but also procured two witnesses,

DW-2 and DW-4, and also made DW-1 and DW-5 to toe his line to

make his cock and bull story appear like a reality. It has come on

record that the bus hit the motorcycle from behind as per the

mechanical inspection report of the motorcycle and testimony of

PW-1 that the pillion rider died in the said accident. It is obvious

that that bike driver was hit with such a force from behind by the

bus driver due to which pillion rider and bike driver both fell down

resulting into causing serious injuries to the pillion rider. The

impact and the force with which the accident had occurred proves

the testimony of PW 1 who in his deposition stated that the bus

was being driven by the petitioner at a very high speed. No

doubt in the given circumstances where the bike was hit from

behind, the bus driver could have been the best witness but he

instead tried to dupe the court through his false alibi and by

examining witnesses who toed his line and therefore the trial and

the appellate court correctly gave weightage to the testimony of

PW 1 and other circumstantial evidence to hold the petitioner

guilty of the said offence.

11. The appellate court has already gone into all the issues as

have been canvassed by the petitioner in the present revision

petition and counsel for the petitioner has not pointed out any

glaring error in the reasoning given by the appellate court. It is

not a case of the petitioner that on the fateful day the petitioner

was not on duty or did not drive down the bus from Mayur Vihar

and on his way back he did not cross the Super Bazar area where

the accident had taken place. The main emphasis counsel for the

petitioner had laid on the fact that PW-1 Vimal Kaushal disclosed

the time of occurrence of the accident at 12.30 P.M. and by no

stretch of imagination the offending bus could reach at that point

of time after beginning its journey from Mayur Vihar Bus Depot at

12.15 P.M. as per the time sheet produced on record by the DW-5

and exhibited as DW-5/A. This issue has been discussed in detail

not only by the trial court but also by the appellate court. It is an

admitted fact that the accused was driving the offending vehicle on

the date of the accident. PW1 in his deposition stated that the

accident took place at 12:30 pm. As per the MLC, Ex. PW2/A the

victims including PW1 were brought to the hospital at about 1:10

p.m. and as per the deposition of PW 7 Sh. Ajit Singh, I.O., PW7

reached the accident spot at 1:15 p.m. upon receiving information

about the accident at 1.00 p.m. and as per the time sheet Ex. DW

5/A maintained at the Mayur Vihar II Bus Terminal, the bus moved

out of the Depot at 12:15 p.m. Considering these evidences there

remains no doubt that the said bus met with an accident sometimes

between 12:30pm and 1:10 pm near Plaza Cinema. The trial court

and the appellate court rightly came to the conclusion that it was

not the case of the petitioner that he was not on his duty as a driver

on the said fateful day or was not driving on the said route from

Mayur Vihar to Plaza and from Plaza to Mayur Vihar or did not move

out his bus from Mayur Vihar Depot around the said period of time

or some other bus on the same route also left the depot around the

same time. The contention of the counsel for the petitioner that

the bus could not reach the accident spot just within 15 minutes

that too after passing through 17 bus stops is without any

substance and force as the bus definitely left the depot after 12.15

p.m. and met with an accident within a period of one hour and as

per the testimony of PW 1, the driver was driving the bus at a very

high speed and therefore in the year 1991 when the population of

vehicles in Delhi was comparatively on a much lower side and bus

driven at a high speed could certainly reach from Mayur Vihar to

the place of accident within a period of less than one hour. The exit

of the said bus as per the time sheet Ex. DW 5/A at 12.15 p.m.

thus fully corroborates the prosecution case coupled with the fact

that the petitioner had fled away from the spot with the bus. It

would be thus apparent that the time of 12.30 p.m. as stated by PW

1 to be the time of accident would not be of much significance as

the accident in any case by the petitioner driving the bus No. DEP-

9486 on the said route had taken place and the time sheet proved

on record as Ex. DW 5/A limited to the extent of proving exit of the

said bus after 12.15 a.m. proves the prosecution story than that of

the defence.

12. Be that as it may, it is a matter of common knowledge that

any common and prudent man would know that a person who is

met with an accident would not check the time in the watch as to

when the accident took place. Obviously PW1 disclosed an

approximate time of the accident. Trivial inconsistencies regarding

time cannot be termed as loopholes in the prosecution story. Thus, I

do not find any infirmity in the impugned judgment on this count

and the decision in Ashok Kumar (Supra) in this regard would

not apply to the facts and circumstances of the present case,

therefore, the same is of no assistance to the petitioner.

13. As regards the issue of non-reliability of the witness PW1, I am

of the view that a person who is met with an accident cannot be

expected to tell everything with a great precision, thus, trivial

inconsistencies can be ignored if the broad picture confirms and

points at the culpability of the accused. Be that as it may, except

some minor inconsistencies, it is clear that the testimony of PW-1

and PW 7 remained unimpeached. Furthermore, considering the

conduct of the petitioner and the false alibi taken by him, as

discussed above, makes the court to draw adverse inference

against the petitioner. As regards the conduct of the PW-1 and the

fact that he did not meet his friend and did not go for his Kriya, it

has come in the cross-examination of PW-1 that he did attend

Chautha or Kriya of the deceased and did not meet him as he

himself had met with the accident. Thus, I do not find any

substance in the contention of the counsel for the petitioner on this

count as well.

14. As regards the issue that Mr. Praveen Dua who had taken the

deceased and PW1 to the hospital from the accident spot was not

called as a witness and therefore, the prosecution story cannot be

relied, I do not find any merit in the said contention. It is the totality

of the circumstances and not merely a solitary circumstance which

has to be taken into consideration while deciding a matter. In the

instant case, even without the testimony of the said Mr. Praveen

Dua, there is sufficient evidence to prove the culpability of the

petitioner. Therefore, no interference is made in the order on this

count.

15. As regards the overwriting carried out on the M.L.C., wherein

as per the counsel for the petitioner, originally the bus no. was

recorded as 9786 which was later overwritten and changed to

9486. Had there been any suspicion in this regard, then the

defence could have cross-examined the person, PW2 who made the

MLC but the same was not done, thus, this contention of the

counsel for the petitioner also falls face down.

16. As regards the issue of negligence, it is no more res integra

that the High Court while exercising revisional jurisdiction cannot

go into the question as to whether the accused was guilty of

negligence as the same is a question of fact and concurrent

findings of fact cannot be interfered with by the revisional court.

The judgment in Duli Chand's case (Supra) is an authority on

this issue. As already discussed above, since the petitioner could

have been the best witness as regards the issue of negligence is

concerned especially when the pillion rider died in the accident

and the offending vehicle had hit the motor cycle from behind, but

he under the guise of false alibi that the accident did not happen

with the bus made the court to draw adverse inference against him.

Therefore, this contention of the counsel for the petitioner also falls

face down.

17. As regards the issue that no independent witness was

examined to prove that the petitioner was behind the steering

wheel at the time of the accident, I do not find any force in the

same also. As already discussed, petitioner was himself the best

witness but due to his false alibi an adverse inference needs to be

drawn. Furthermore, the very fact that the petitioner did not join

TIP proceedings coupled with other circumstances propels the

court to draw adverse inference. There can be no doubt that

testimony of an independent witness would have turned the table if

such witness would have explained the exact sequence of events

leading to the said accident. But since in the present case, the

driver, conductor or passengers could have been the best witnesses

to prove rash and negligence on the part of the driver of the

motorcycle and not on the part of the petitioner but false stand of

the bus driver of denying the accident itself totally exposed the

petitioner that by such denial he tried in vain to hoodwink the

prosecution to escape from the clutches of law. Also, the petitioner

did not deny having crossed the spot of accident. Therefore, the

said contention of the counsel for petitioner has no merit and the

decision in Rattan Baxi (Supra), George & Ors. (Supra) and

Rajinder Kumar (Supra) are of no assistance to the petitioner

18. As regards the other contention of the counsel that the death

of the deceased Sanjay has no nexus with the accident has no

merits. Merely because even after the accident the victim was

speaking in the hospital does not mean that he did not die a little

later due to the accident. It has come in the testimony of PW-3, Dr.

S.K. Khanna that as per the post mortem conducted by him, the

deceased Sanjay died due to accidental death and the said

testimony remains unrebutted and further strengthens prosecution

case. While dealing with offence under Section 304-A IPC what

should be considered is that proximate cause of the death should

be accident and, which should not be confused with proximity of

time. Therefore, the judgment in Anand Singh Neggi's case

(Supra), Kurban Singh's case (Supra) and Krishna's case

(Supra) are of no assistance to the petitioner.

19. Indisputably, it is well settled that merely because the

evidence regarding the offending vehicle being driven at a high

speed at the time of accident had come on record would not saddle

the accused with guilt of rashness and negligence, but high speed

coupled with other circumstances if points towards culpability of the

accused, then this piece of evidence cannot be ignored. In the

instant case, it has come in the testimony of PW1 that the bus hit

his motorcycle from the left side and he fell on the right side and

this testimony of PW 1 remains unrebutted. Therefore, clearly the

bus driver was driving the vehicle in a rash and negligent manner

and against the traffic rules. This further shows that, the vehicle

was being driven at a high speed and it had hit the bike from the

left side, which clearly shows rashness on the part of the petitioner.

Following portion of the deposition of PW 1 clearly proves that the

petitioner was rash and negligent in driving the bus:-

"On 1.10.1991 I along with my friend Sanjay Gupta was going on a motor cycle No. DL-4SC-496 which I was driving. When we had reached near Super Bazar Outer circle and at about 12.30 p.m. a DTC bus came on a very high speed from behind and hit us. The DTC bus was at fault as it was being driven at a fast speed and it hit us on the left side as a result thereof we fell down. The number of the bus was DEP-9486 and the bus went away I did not see the driver of the bus and so I cannot identify him today. I received minor injuries on my left arm and the other received fracture pelvis. Parveena Dua removed us to JPN Hospital. Sanjay expired there afterwards I gave statement to the police which is Ex. PW 1/A. the same bears my signature."

The judgments relied upon by the counsel for the petitioner in this

regard in Pradeep Kumar (Supra) and Mohanta Lal Saha

(Supra) are of no assistance to the petitioner. Considering the

totality of the facts and circumstances of the case, there appears to

be no ground to allow the revision petition.

20. As regards the contention of the counsel that both, the trial

court and the appellate court, have convicted the petitioner on

mere conjecturers and surmises, I do not feel that this contention

of the counsel has any merit. It is well settled that when a party

approaches court for justice, then it must come with clean hands.

Herein, the conduct of the petitioner has been dubious from the

very beginning. First, he denied that the offending vehicle, which

he drove on the fateful day of the accident met with the accident.

Second, he procured two witnesses DW2 and DW4. Third he made

the conductor of the said bus on the date of the accident toe his

line and further brought DW5, who brought the time log which

cannot be believed as it is a mere photo copy and a loose sheet,

not even a part of a log book. Considering such demeanour of the

petitioner, adverse inference needs to be drawn against him.

Therefore, the decisions in Syed Akbar (Supra), Des Raj(Supra)

and Dhan Bahadur (Surpa) relied upon by the counsel in this

regard are of no assistance to the petitioner.

21. As regards the issue of sentence of the petitioner, after

considering the demeanour of the petitioner, his cock and bull

story and the false alibi taken by him, I do not feel inclined to

interfere with the order on sentence. Therefore, the decision in

B.C. Goswami (Supra) relied upon by the counsel is of no

assistance to the petitioner.

22. In view of the foregoing discussion, I do not find that there is

any manifest miscarriage of justice. Therefore, the revision petition

is dismissed and the impugned order dated 2/11/2001 passed by

the Ld. ASJ, the judgment/order dated 27/2/2001 passed by Ld.

Trial court wherein, the petitioner was sentenced to undergo R.I. of

2 years along with fine of Rs. 5,000/- are not interfered with and

are upheld.

23. Dismissed.

23rd March, 2009                         KAILASH GAMBHIR, J.