Himachal Pradesh High Court

Reserved On: 17.10.2024 vs State Of H.P on 25 October, 2024

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Revision No.4027 of 2013 Reserved on: 17.10.2024 Date of Decision: 25.10. 2024.

Sanju ....Petitioner Versus State of H.P. ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? No.

For the petitioner                :      Mr.  Lovneesh          Knawar,         Senior
                                         Advocate with          Mr. Tek         Chand,
                                         Advocate.

For the        Respondent/ :             Mr. Lokender Kutlehria, Additional
State                                    Advocate General

Rakesh Kainthla, Judge.

The present revision is directed against the judgment

dated 29.05.2013 passed by learned Sessions Judge, Hamirpur,

District Hamirpur, H.P. (learned Appellate Court) vide which

judgment of conviction dated 27.09.2011 and order of sentence

dated 29.09.2011 passed by learned Judicial Magistrate First Class,

__________

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Nadaun, District Hamirpur, H.P. (learned Trial Court) were

upheld. (Parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience).

2. Briefly stated, the facts giving rise to the present

revision petition are that the police filed a chargesheet against the

accused before the learned Trial Court for the commission of

offences punishable under Sections 279, 337 & 338 of the Indian

Penal Code (IPC) and Section 187 of the Motor Vehicles (MV) Act.

It was asserted that some unknown person made a telephone call

to the police on 11.07.2005 at about 3:25 p.m. that a tempo and a

private bus had met with an accident at Jalari. Two people were

injured in the accident who were taken to CHC Nadaun for

treatment. The police recorded an entry No.16 (Ext.PW-7/C) in the

daily diary and sent HC Amar Nath (PW-12) and Constable Besri

Lal No. 89 to CHC Nadaun for verification. Veena Devi (PW-6)

made a statement before HC Amar Nath (PW-12) that she was

going to her field and when she reached near Primary School Jalari

on 11.07.2005 at about 3:20 p.m. the driver of the bus bearing

registration No. HP55-0425 stopped the bus near the school to

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enable the passengers to get down. He started the bus and after

some distance, a tempo came from Hamirpur towards Nadaun at a

high speed. The driver of the tempo could not control it and it

grazed against the right side of the bus. Two passengers

sustained injuries on their arms. The accident had taken place due

to the high speed and negligence of the driver of tempo bearing

registration No. HP32-0952. The statement (Ext PW-6/A) was

reduced into writing, which was sent to the Police Station, where

F.I.R. (Ext.PW-7/B) was registered. HC Amar Nath (PW-12)

conducted the investigation. He filed an application (Ext.PW-

12/A) for conducting the medical examination of the injured. Dr

G.R. Kaushal (PW-11) conducted the medical examination of

Ashish Kumar (PW-2) and Manoj Kumar (PW-1) and found that

they had suffered grievous and simple injuries, which could have

been caused in a motor vehicle accident. He referred the patients

to Dr Rajendra Prasad Government Medical Collage, Kangra at

Tanda, H.P. for management by Orthopaedic Surgeon. He issued

the MLCs(Ext.PW-11/B and Ext.PW-11/A). HC Amar Nath (PW-12)

took the photographs of the spot(Ext.PW-12/B to Ext.PW-12/G

whose negatives are Ext.PW-12/H to Ext.PW-12/M). He prepared

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the site plan (Ext.PW-12/N), seized the bus bearing HP55-0425

vide memo (Ext.PW-4/A) and handed it over to Suresh Galoda

(PW-4) on Sapurdari. The accused produced tempo bearing

registration No. HP32-0952, which was seized vide memo

(Ext.PW-5/A). HC Ramesh Chand (PW-8) conducted the

mechanical examination of the vehicles and found that there were

no mechanical defects in any of the vehicles, which could have led

to the accident. He issued his mechanical reports (Ext.PW-8/A and

Ext. PW-8/B). Statements of witnesses were recorded as per their

version and after the completion of the investigation, the challan

was prepared and presented before the Court.

3. The learned Trial Court found sufficient reasons to put

the notice of accusation to the accused for the commission of

offences punishable under Sections 279, 337 &338 of IPC and

Section 187 of the M.V. Act. The accused pleaded not guilty and

claimed to be tried.

4. The prosecution examined 13 witnesses to prove its

case. Manoj Kumar (PW-1) and Ashish Kumar (PW-2) are the

victims. Dhani Ram (PW-3) is the owner of the tempo bearing

registration No. HP32-0952. Suresh Galoda (PW-4) and Vaam Dev

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(PW-5) are the witnesses to the recovery of the vehicles and

documents. Veena Devi (PW-6) is the informant. HC Kuldeep

Chand (PW-7) registered the F.I.R. in the Police Station. HC

Ramesh Chand (PW-8) conducted the mechanical examination of

the vehicles. Fauja Singh (PW-9) prepared the challan. Sanjeev

Kumar (PW-10) was the conductor and Ravinder Kumar (PW-13)

was the driver of the bus. Dr. G.R. Kaushal (PW-11) conducted the

medical examination of the injured. HC Amar Nath (PW-12)

investigated the case.

5. The accused in his statement recorded under Section

313 of Cr.P.C. denied the prosecution case in its entirety. He stated

that he was innocent and there was no fault on his part. No

defence was sought to be adduced by him.

6. The learned Trial Court held that the testimonies of the

witnesses established that the accused was driving the vehicle at

high speed. The bus on the other hand had just started and its

speed could not be high. The tempo had hit the bus, causing

injuries to the victims. The spot map showed that the road was

twenty (20) feet wide. The accused was supposed to drive his

vehicle towards the left side of the road. He had failed to adhere to

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this principle, which led to the accident and caused simple and

grievous injuries to the victims. He failed to stop the vehicle and

take the victims to the hospital. Hence, he was convicted of the

commission of offences punishable under Sections 279 and 338 of

IPC and Section 187 of the M.V. Act and sentenced as under:

Sl.    Section(s)        Sentence
No.

1.     279 of IPC         To undergo simple imprisonment for six

months and a fine of ₹1000/-. In case of non-

payment of fine to undergo further simple imprisonment for one month.

2. 338 of IPC To undergo rigorous imprisonment for six months and a fine of ₹3000/-. In case of non-

payment of fine to undergo further simple imprisonment for two months

3. 187 of M.V. Act To undergo simple imprisonment for six months and a fine of ₹1000/-. In case of non-

payment of fine to undergo further simple imprisonment for one month.

7. Being aggrieved from the judgment and order passed

by the learned Trial Court, the accused filed an appeal, which was

decided by the learned Sessions Judge, Hamirpur, District

Hamirpur, H.P. (learned Appellate Court). The learned Appellate

Court concurred with the findings recorded by the learned Trial

Court that the accused was driving the tempo at the time of

the accident. He had failed to drive the tempo towards the left

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side of the road. He should have been careful while driving the

tempo and his negligence led to the accident-causing injuries to

the victims. The accused was driving the tempo at an excessive

speed due to which he could not control the vehicle. The learned

Trial Court had rightly held him guilty, hence, the appeal was

dismissed.

8. Being aggrieved from the judgments and order passed

by the learned Courts below, the accused has filed the present

revision petition asserting that learned Courts failed to properly

appreciate the material placed before them. There was no dent on

the bus and tempo suggesting that the tempo had grazed against

the bus. Learned Courts below erred in convicting and sentencing

the accused. It was duly established on record that the victims

had kept their arms outside the bus and they were negligent. The

accused could not have been convicted in these circumstances.

Therefore, it was prayed that the present revision petition be

allowed and the judgments and order passed by the learned Courts

below be set aside.

9. I have heard Loveneesh Kanwar, learned Senior

Counsel instructed by Mr. Tek Chand, learned counsel for the

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petitioner/accused and Mr. Lokender Kutlehria, Additional

Advocate General for the respondent/State.

10. Mr. Lovneesh Kanwar, learned Senior Counsel

submitted that the driver of the bus admitted in his cross-

examination that the passengers had kept their arms on the

windows and parts of their arms projected outside the bus. He had

asked them not to keep their arms outside the window of the bus

but they failed to do so. The negligence of the passengers caused

injuries to them and there was no negligence on the part of the

accused. He submitted in the alternative that the accused had

undergone the agony of the trial for a long time and a lenient view

be taken in the matter. He relied upon the judgment of Hon'ble

Supreme Court in Surendran vs Sub-Inspector of Police, Special

Leave Petition (Crl.) 5985 of 2016, decided on 30.062021 and

the judgment of this Court in Bhupinder Sharma vs State of H.P.

2016:HHC3779 in support of his submission.

11. Mr. Lokender Kutlehria, learned Additional Advocate

General for the respondent/State supported the judgments and

order passed by the learned Courts below. He submitted that

the accused should have been careful and should have driven the

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vehicle towards the left side of the road. The failure to do so led to

the injuries to the victims and the learned Courts below had

rightly held the accused guilty. No interference is required with

the judgments and order passed by the learned Courts below.

Hence, he prayed that the present revision petition be dismissed.

12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon'ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022)

3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court

does not exercise an appellate jurisdiction and it can only rectify

the patent defect, errors of jurisdiction or the law. It was observed

on page 207: -

"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy 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

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inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

14. This position was reiterated in State of Gujarat v.

DilipsinhKishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was

observed:

"13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional

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jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex- facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC."

15. The present revision has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

16. Manoj Kumar (PW-1) stated in his examination-in-

chief that the accident had taken place due to the high speed of the

tempo. Ashish Kumar (PW-2) also stated that the accident had

taken place due to the high speed and negligence of the driver of

the tempo. Veena Devi (informant) (PW-6) stated that the

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accident had taken place due to the negligence of the tempo driver

because he was driving the tempo at full speed. Sanjeev Kumar

(PW-10) stated that he could not say that the accident had taken

place due to the high speed of the tempo. Ravinder Kumar (PW-

13) stated that the accident occurred due to the high speed and

negligence of the accused.Both the learned Courts below held that

the accused was driving the vehicle at a very high speed;

therefore, the accused was negligent. These findings cannot be

sustained. It was laid down by the Hon'ble Supreme Court in

Mohanta Lal Saha v. State of West Bengal, 1968 ACJ 124 that the use

of the term high-speed amounts to nothing unless the notion of

the speed of the witness is to be ascertained from him. It was

observed:

"Prafulla Kumar Dey, no doubt, in court stated that the appellant's bus was coming at high speed; but this statement appears to be an improvement on his earlier evidence given during the investigation when he did not mention to the investigating officer that the bus was running at high speed. Further, no attempt was made to find out what this witness understood by high speed. To one man a speed of even 10 or 20 miles per hour may appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would

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justify holding that he was driving the bus rashly and negligently."

17. It was held in State of Karnataka v. Satish, (1998) 8 SCC

493: 1998 SCC (Cri) 1508 that the use of the term high speed is not

sufficient to infer rashness or negligence. It was observed:

4. Merely because the truck was being driven at a "high speed" does not bespeak either "negligence" or "rashness"

by itself. None of the witnesses examined by the prosecution could give any indication, even approximately as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure."

18. This Court took a similar view in State of H.P. v. Amar

Nath, Latest HLJ 2018 (HP) Suppl. 763, and held as under:-

"18 It would be noticed that the instant is a case where apart from the bare statement of PW-1 that the vehicle was being driven by the petitioner at a high speed, there was no attempt made to establish that there was any rash and

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negligent act on the part of the driver of the vehicle. "High speed" is an expression which is relative and subjective. Therefore, merely because the vehicle was being driven at a high speed does not mean that the driver was driving rashly and negligently."

19. A similar view was taken in Yash Pal Rana v. State of

Himachal Pradesh Latest HLJ 2019 (HP) (Suppl.) 171, wherein it was

observed: -

"9. Leaving everything aside, this Court finds no specific evidence led on record by the prosecution to prove rash and negligent driving by the petitioner-accused. As has been taken note of above, PW-1 in a very casual manner has only stated that the offending vehicle was being driven at high speed, but high speed cannot be a criteria to conclude rash and negligent driving, rather to prove guilt, if any, under Section 279 IPC, it is/was incumbent upon the prosecution to prove act of rashness and negligent so as to endanger the human life. But in the case at hand, the prosecution has not been able to place on record specific evidence, if any, with regard to rash and negligent acts, if any of the accused, which endangered human life.

20. Thus, no advantage can be derived from the use of the

term high speed by the witnesses.

21. Ravinder Kumar (PW-13) stated in his cross-

examination that the tempo was being driven at a speed of about

50 km per hour. This does not constitute the high speed. As per

the notification issued by the State Government under Section

112(1) of the Motor Vehicles Act, the maximum speed of a medium

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or heavy goods motor vehicle is 65 KMs per hour and as per

the statement of Ravinder Kumar (PW-13), the vehicle was being

driven within the prescribed speed limit. Hence, the learned

Courts below erred in holding that the accused was negligent

because he was driving the vehicle at a high speed.

22. Learned Courts below also relied upon the testimonies

of the witnesses that the accused was driving the vehicle

negligently. The statements of the witnesses regarding

the negligence of the accused will not help the prosecution. It was

laid down by Goddard LJ in Hollington vs. Hawthorn 1943 KB 507 at

595 that a witness cannot depose about negligence. It was

observed:

"It frequently happens that a bystander has a full and complete view of an accident. It is beyond question that while he may inform the court of everything he saw; he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant but his opinion is not."

23. Similar is the judgment in State of H.P. vs. Niti Raj 2009

Cr.L.J. 1922 (HP) where it was held:

"It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly. The issue whether the vehicle was being driven in a rash and

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negligent manner is a conclusion to be drawn on the basis of evidence led before the Court."

24. Therefore, the statement of the witnesses that the

driver was negligent without anything more does not constitute

legally admissible evidence upon which any reliance can be placed

by the Court of law to base its judgment.

25. Learned Courts below also held that the place of

accident was wide and the accused was negligent in not driving

the tempo towards the extreme left side of the road. Ravinder

Kumar (PW-13) stated in his cross-examination that the road was

wide on the date of deposition but earlier it was damaged and

narrow. Similarly, Vaam Dev (PW-5) stated in his cross-

examination that there were potholes on the road where the bus

was parked. Both these were not re-examined and this part of

their testimonies was not disputed by the prosecution. These

statements show that there was insufficient space towards the left

side of the road to enable the two vehicles to pass simultaneously

and the learned Court below erred in holding that the accused was

negligent in not driving the vehicle towards the extreme left side

of the road.

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26. Ravinder Kumar (PW-13) stated in his cross-

examination that the passengers had kept their arms outside the

bus. He stopped the bus and asked the passengers to keep their

arms inside the bus. It was also written inside the bus that

passengers should keep their arms inside the bus. This part of his

testimony was also not challenged. It is also corroborated by the

fact that injuries were caused to the right arms of the victims,

which was only possible if the arms protruded outside the bus. It

was laid down by this Court in Bhupinder Sharma v. State of H.P.,

2016 SCC OnLine HP 1762 that where the body of the deceased was

protruding out of the vehicle at the barrier, he was himself

negligent and responsible for the accident. It was observed:

"15. Though there is no specific evidence with regard to the speed of the offending vehicle at the relevant time, save and except the bald statement of PW-1 that the vehicle was being driven rashly and negligently. It is also difficult to accept that the vehicle was being driven at high speed even at the barrier, where usually the speed of the vehicle becomes slow. PW-1, who was the eyewitness to the present incident, unequivocally stated that there was the fault of deceased Chet Singh. It appears that when the vehicle was passing through the barrier, it was half open and admittedly the head of deceased Chet Singh, which was protruding out of the body of the vehicle, struck with the pole of the barrier and he fell down from the Pick-up on the road and injury was caused to him. The mere statement of admission to the effect that the body of Chet Singh was protruding out of the body of

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the vehicle that too at the barrier suggests that deceased Chet Singh himself was quite negligent and responsible for the accident."

******

26. In the totality of the facts and circumstances narrated hereinabove, I have no hesitation to conclude that statements given by the aforesaid prosecution witnesses are not sufficient to hold that the accuseddriver was driving the vehicle at the relevant time at a high speed and that too negligently. Rather their statements suggest that it is the deceased Chet Singh, who has been quite negligent while traveling in the vehicle. Had he not protruded his head from the body of the vehicle, he would have been not suffered injuries as were not suffered by other persons, who were also standing in the rear portion of the pickup." (emphasis supplied)

27. In the present case also when the victims had projected

their arms outside the body of the bus, therefore, they were

responsible for the injuries to their arms and the learned Courts

below erred in holding that the accused was negligent and

responsible for the injuries to the victims.

28. Thus, there was insufficient evidence to show that the

accident was caused due to the negligence of the accused and the

learned Courts below erred in holding that the accused was guilty,

therefore, the judgments and order passed by the learned Courts

below cannot be sustained.

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29. In view of the above, the present revision is allowed