Between vs Unknown
2021 Latest Caselaw 5481 HP

                                     1

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 29TH DAY OF NOVEMBER, 2021




                                                                 .
                                BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                  CRIMINAL REVISION No. 204 of 2012





     Between:-
      SURINDER KUMAR RANA, S/O
      SH. BAISAKHI RAM, RESIDENT
      OF BALH, P.O. DHANDOL,





      TEHSIL AND POLICE STATION
      BAIJNATH,          DISTRICT
      KANGRA,          HIMACHAL
      PRADESH.
                        r                               ...PETITIONER
     (BY SHRI KARAN             SINGH      KANWAR,

     ADVOCATE)

     AND


     STATE         OF        HIMACHAL
     PRADESH
                                      ...RESPONDENT
     (BY M/S SUMESH RAJ, ADARSH SHARMA &




     SANJEEV SOOD, ADDITIONAL ADVOCATE
     GENERALS & MR. KAMAL KANT CHANDEL,





     DEPUTY ADVOCATE GENERAL)
     Whether approved for reporting? No.
      Reserved on: 09.11.2021





      Decided on: 29.11.2021
 __________________________________________________________
            This petition coming on for pronouncement of judgment this
day, the Court passed the following:

                                JUDGMENT

By way of this revision, the petitioner-accused has challenged

judgment dated 11.12.2007, passed by the Court of learned Judicial

Magistrate, 1st Class, Baijnath, District Kangra, H.P. in Criminal Case No.

1-II/2007, titled as State Vs. Surender Kumar Rana, vide which, the

.

petitioner was convicted for commission of offences punishable under

Sections 279, 338 and 304-A of the Indian Penal Code and Section 181

of the Motor Vehicles Act, as also judgment dated 13.08.2012, passed by

the the Court of learned Additional Sessions Judge, Fast Track Court,

Kangra at Dharamshala in Criminal Appeal No. 2-B/X/2008, titled as

Surinder Kumar Rana Vs. State of Himachal Pradesh, vide which, an

appeal filed by the petitioner-accused against the judgment passed by the

learned Trial Court, was dismissed.

2. Vide judgment dated 11.12.2007, the following sentence was

awarded by the learned Trial Court:-

Section Imprisonment                      Fine                 In default
279 IPC Simple imprisonment for           Rs.500/-             Simple




        three months                                           imprisonment for
                                                               one month





338 IPC Simple imprisonment for           Rs.500/-             Simple
        three months                                           imprisonment for





                                                               one month
304-A    Simple imprisonment for          Rs.500/-             Simple
IPC      three months                                          imprisonment for
                                                               one month
181 of ----                               Rs.500/-             Simple
M.V. Act                                                       imprisonment for
                                                               seven days.

3. Brief facts necessary for the adjudication of this petition are

as under;-

.

As per the prosecution, on 23.04.2006, the petitioner/accused

was driving a tractor bearing registration No. HP-53-A-9304 at Dhandol in

the morning hours at about 9:00 a.m. His nephew Rishab was also sitting

in the tractor and on on account of the rash and negligent driving of the

accused, the tractor went out of the road, resulting in an accident, in which

nephew of the petitioner/accused lost his life. Accused also suffered

injuries in the accident. He was taken to the hospital. The matter was

reported to the Police and FIR was registered. After investigation, challan

was presented in the Court and Notice of Accusation under Sections 279,

338, 304-A of the Indian Penal Code and Section 181 of the Indian Penal

Code was put to the accused, to which he pleaded not guilty and claimed

trial. The petitioner was convicted by the learned Trial Court for

commission of offences punishable under Sections 279, 338 & 304-A of

the Indian Penal Code and Section 181 of the Motor Vehicles Act. While

convicting the petitioner, learned Trial Court held that the evidence on

record clearly demonstrated that the accident took place due to rash and

negligent act of the accused. It held that it had come in evidence that road

at the spot was quite wide and there was no mechanical defect in the

vehicle. There was no danga on the spot nor any earth gave way, as

alleged, which demonstrated that the accident had occurred on account of

rash and negligent driving of the accused. Learned Trial Court also held

that the accused was required to explain as to how the accident took

.

place, because he was the only witness at the spot and as the defence

taken by him was found to be false, therefore, it was clearly proved that

the accident took place on account of rash and negligent driving of the

accused.

4. In appeal, these findings were upheld by the learned

Appellate Court. Learned Appellate Court held that as per record, there

was no independent witness present at the spot, therefore, circumstances

of the alleged occurrence had to be taken into consideration. It held that it

was the case of the accused that danga on the spot had collapsed, which

led to the accident, but what precaution the accused took to drive the

vehicle at the spot, was not explained. Learned Appellate Court also held

that PW-5 Amar Singh in his re-examination had admitted that

photographs were taken at the spot and there was no danga at the spot.

Learned Appellate Court also held that photographs which were exhibited,

also demonstrated that road at the site where the accident took place was

plain and there was no danga at the spot. It also took into consideration

the statement of PW-7 ASI Raj Kumar, who deposed in the Court that the

accident took place on account of rash and negligent driving of the

accused.

5. Feeling aggrieved, the petitioner/accused has filed this

petition.

.

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

gone through the judgments passed by the learned Courts below as well

as the record of the case.

7. In order to prove its case, the prosecution had examined nine

witnesses. Record demonstrates that there was no independent witness

present at the spot when the accident took place. The petitioner has been

convicted by the learned Trial Court by holding him guilty of rash and

negligent driving. It is settled law that rash and negligent driving of a

vehicle has to be duly proved by the prosecution and simply because an

accident took place, same is not sufficient to hold the accused guilty. Here

is an unfortunate case in which on account of an accident, the accused

lost his minor nephew. PW-1 is Dr. R.L. Kaundal, who had examined the

accused after he had sustained injuries in the accident. PW-2 Shri Gopi

Ram was the Pradhan of the concerned Gram Panchayat, who deposed

before the Court that on 23.06.2006, when he visited the site of the

accident at around 10:30 a.m., he found that the tractor of the accused

had fallen down and as a result of the same, the accused had suffered

injuries in his legs, whereas Rishab lost his life. This witness was declared

as a hostile witness. He was cross-examined by the prosecution, but in his

cross-examination, this witness nowhere deposed that the accident took

place due to rash and negligent driving of the accused. Similarly, in his

cross-examination by the accused, he admitted the suggestion that at the

.

place where the accident taken place, there was a kachha danga and

during those days, on account of heavy rainfall, the danga had partly

given way. He admitted the suggestion that the tractor fell down on

account of the sinking of the danga.

8. PW-3 Ravinder Kumar is the brother of accused and the

father of deceased in the accident. He stated in his examination-in-chief

that on 23.04.2006, he came to know abut the accident after 5-6 hours of

the occurrence of the same, in which, his son died. In his cross-

examination by the accused, he admitted that the site where the accident

had taken place, there was a kachha danga, which had partly given way,

resulting in the accident, on account of heavy rainfall during the period in

issue.

9. PW-4 is Dr. D.D. Rana, who had conducted the post-mortem

of Rishab. PW-5 Shri Amar Singh is the witness of the spot, who had

deposed that he had rushed to the spot when he heard the sound of

falling of a tractor. He stated that Surender Kumar and Rishab respectively

suffered injuries and lost life on account of the accident. In his cross-

examination, he stated that the accident had taken place on account of a

danga giving way, because of heavy rainfall. This witness was re-

examined by the learned Public Prosecutor and in his re-examination, he

admitted the suggestion that in the photographs of the site, there was no

danga. However, he also stated that the land had sunk at the spot. The

.

next relevant witness is PW-7, i.e., the Investigating Officer, who

supported the case of the prosecution.

10. Now, it is apparent from the evidence on record that none of

the independent witnesses deposed in the Court that the accident took

place on account of rash and negligent driving of the accused. Learned

Trial Court convicted the accused on the ground that the defence taken by

the accused that there was a danga at the spot, which gave way, resulting

in the accident, was found to be incorrect defence. Learned Appellate

Court also concurred with the said findings of the learned Trial Court. This

Court is of the considered view that even if the defence so taken by the

accused was found to be incorrect by the learned Trial Court, as also the

learned Appellate Court, yet the first thing which ought to have been

established by the prosecution beyond reasonable doubt was the fact that

the accident took place on account of rash and negligent driving of the

accused, de hors the fact whether there was any danga at the site, which

gave way or not. This onus the prosecution has miserably failed to

discharge, because no cogent evidence was produced by the prosecution

before the learned Trial Court to prove that the accident indeed took place

on account of rash and negligent driving of the accused. Another fact

which weighed with the learned Trial Court while convicting the accused,

was that the accused was not possessing a valid licence for driving the

tractor. This Court is of the considered view that this fact alone could not

.

have resulted in a finding of rash and negligent driving against the

accused until and unless, as discussed hereinabove also, it stood proved

beyond reasonable doubt that the accident indeed took place on account

of rash and negligent driving of the petitioner. During the course of hearing

of this petition, it could not be disputed by the State that the accident took

place where the road was kachha and that version of the witnesses that

heavy rain had taken place during the days when the accident took place,

was correct. Besides this, this Court is of the considered view that danga

in the perspective of this case is not to be confused with a Wall per se and

the same has to be perceived in the context of what a danga can be and

could have been in the fields in a village. In addition, the defence of the

accused was only that the danga had partially sunk, due to which, the

tractor fell down. This indeed was possible on account of the road

conditions, especially after heavy rainfall.

11. Accordingly, as this Court is of the considered view that the

findings returned by the learned Trial Court, as upheld by the learned

Appellate Court are not borne out from the record, especially in view of

the fact that there is nothing on record from which it can be inferred that

the accident indeed took place on account of rash and negligent driving of

the accused, this petition is allowed and judgment dated 11.12.2007,

passed by the Court of learned Judicial Magistrate, 1st Class, Baijnath in

Criminal Case No. 1-II/2007, titled as State Vs. Surender Kumar Rana,

.

vide which, the petitioner was convicted for commission of offences

punishable under Sections 279, 338 and 304-A of the Indian Penal Code

and Section 181 of the Motor Vehicles Act, is ordered to be set aside, so

also judgment dated 13.08.2012, passed by the Court of learned

Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in

Criminal Appeal No. 2-B/X/2008, titled as Surinder Kumar Rana Vs. State

of Himachal Pradesh, vide which, the appeal filed by the petitioner-

accused against the judgment passed by the learned Trial Court was

dismissed. Fine amount, if any, deposited by the petitioner be released to

him forthwith.

Petition stands disposed of.

(Ajay Mohan Goel) Judge

November 29, 2021 (bhupender)