Vijay Ram vs State Of Uttarakhand
2023 Latest Caselaw 2388 UK

                               Judgment reserved on: 19.05.2023
                               Judgment delivered on: 22.08.2023

  IN THE HIGH COURT OF UTTARAKHAND AT
                             NAINITAL

              Criminal Revision No. 140 of 2013

Vijay Ram                                         ..... Revisionist

                                Vs.

State of Uttarakhand                              ......Respondent

Present:
     Mr. Sachin, advocate for the revisionist/accused.
     Mr. Kuldeep Singh Rawal, A.G.A. for the State of Uttarakhand.

Per: Hon'ble Pankaj Purohit, J.

This Criminal Revision is directed against the judgment and order dated 31.05.2013 passed by the learned Additional Sessions Judge, Ranikhet, District -Almora in Criminal Appeal No. 11 of 2009 "Vijay Ram Vs. State of Uttaraskhand", whereby, the learned Additional Sessions Judge, Ranikhet affirmed the judgment and order dated 25.03.2009 passed by the learned Judicial Magistrate Ranikhet in Criminal Case No. 820 of 2001 "State Vs. Vijay Ram", whereby, the revisionist-accused was convicted under Sections 279, 337, 338 and 304-A IPC and was sentenced Rs. 500/- as fine in each of the offence under Section 279, 337, 388 IPC and two years rigorous imprisonment under section 304-A IPC and fine of Rs. 500/- with default stipulation that if the fine is not paid, will have to undergo 4 months additional simple imprisonment.

2. As per the case of the prosecution, a first information report was lodged against the revisionist-accused in Police

Station-Ranikhet by informant Bharat Bhushan S/o Dol Singh (PW-1) with the allegations that the informant was the resident of Village-Sauni (Devlikhet); according to informant he boarded the bus no. U.P. 02B-7025 of KMOU for going to his village; there were 42-45 other passengers including Shri Pramod Kumar S/o Nandan Ram, R/o Lakhanpur Ramnagar and Shri Lalit Mohan Papne S/o Amba Dutt Papne, R/o Sauni, Talla Dabar; when this bus reached near Village - Timila Diggi at around 2:00 PM the driver of the bus Vijay Ram S/o Madhoram, R/o Village-Chapar, Post Office-Betalghat, Tehsil-Betalghat, District-Nainital, presently residing near Normal School, Ramnagar, while driving the bus very rash and negligently plunged it into a 60-70 feet deep ravine. In this accident 35 passengers were got injured and 07 passengers were died on the spot. One of the passengers was reported to have died while being taken to the hospital. On the aforesaid first information report (Ex.Ka-1), the chick first information report (Ext. Ka-11) at 19:10 hours, registered in Police Station-Ranikhet as Case Crime No. 01 of 2001 under Sections 279, 337, 338 and 304-A IPC against the revisionist-accused.

3. After investigation the charge-sheet was submitted against the revisionist-accused and the cognizance was taken by the learned Judicial Magistrate Ranikhet on 24.12.2001 and a Criminal Case No. 820 of 2001 "State Vs. Vijay Ram" was directed to be registered.

4. After complying with the procedural necessity of supplying the prosecution documents to the revisionist-accused, his statement was recorded under Section 251 Cr.P.C. to which he pleaded not guilty and stated that the case of the prosecution was lodged against him wrongly. It is pertinent to mention here

at this stage that in answer to question no.-2 put to the revisionist-accused under Section 251 of Cr.P.C., it was categorically stated by him that the accident was not due to rash and negligent act of the revisionist-accused but due to breakage of front-axle and brake fail of the vehicle.

5. The prosecution has examined as many as 12 witnesses in order to substantiate the charges of rash and negligent driving and causing death and injuries to the passengers of the bus. As such PW-1 Lalit Mohan Papne, PW-2 Chandra Shekhar Arya, PW-3 Darban Singh, PW-4 Bharat Bhushan (informant), PW-5 Vipin Chandra Tripathi, PW-6 Harish Chandra Singh, PW-6A Narayan Singh (witness of the inquest of deceased Pan Singh), PW-7 Jodha Singh Bisht, PW-8 Narayan Dutt Joshi (witnesses of the inquest of deceased Mohan Singh S/o Laxman Singh), PW-9 Bhuwan Chandra (witness of the inquest of deceased Laxman Singh S/o Mangal Singh), PW-10 Shambhu Prasad (witness of the inquest of deceased Laxman Singh S/o Mangal Singh), PW- 11- Govind Ballabh (scribe of the FIR), PW-12 Chandra Singh Rathor (Investigating Officer of the case). Later on CW-1 Foreman- Dinesh Chandra Adhikari and CW-2 Dinesh Kumar Verma were also examined by the learned Appellate Court during appeal invoking the provisions of Section 391 Cr.P.C.

6. After recording the evidence of the prosecution witness, the statements of revisionist-accused were recorded under Section 313 Cr.P.C. In his defence, he stated that the accident occurred due to technical fault in the bus and not by rash and negligence act of the revisionist-accused. The revisionist-accused (Vijay Ram) got himself examined as DW-1 and Pramod Kumar S/o Late Sri Fakir Ram as DW-2, to prove his version.

7. 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 revisionist-accused beyond all reasonable doubt and convicted him under Sections 279, 337, 338 and 304-A IPC and sentenced him as stated in Para no.-1 of this judgment vide judgment and order dated 25.03.2009.

8. The revisionist -accused challenged his conviction and sentence by preferring a Criminal Appeal No. 11 of 2009, Vijay Ram Vs. State of Uttarakhand in the court of learned Additional Sessions Judge, Ranikhet, District-Almora. It is contended by the revisionist-accused in his appeal that the learned trial court did not appreciate the evidence of the prosecution in right perspective and no credible evidence against the revisionist- accused, was available on record. It was also contended by the revisionist-accused that the technical inspection report filed by the prosecution was completely ignored by the learned trial court together with the defence evidence of DW-1 (Vijay Ram, the revisionist-accused) and DW-2 Pramod Kumar. The contradictions arrived at in the evidence of the prosecution were also not given any credence by the learned trial court and as such committed a mistake of law and fact, while convicting and sentencing the revisionist-accused.

9. The learned Appellate Court after hearing the parties found that the technical inspection report submitted by the prosecution during the trial was not legally proved. It was found by the learned Appellate Court that in the technical inspection report, there was a mention of breakage of front-axle of the bus. The learned Appellate Court was of the view that since there was nothing on record to suggest as to whether the front-axle of the

bus broke either before the accident or after the accident, invoking its powers under Section 391 Cr.P.C, the learned Appellate Court summoned the registration certificate, fitness certificate and route certificate relating to the bus from Regional Transport Office and also summoned the officers issuing those documents. The learned Appellate Court summoned CW-1 Foreman- Dinesh Chandra Adhikari for proving the technical inspection report and Administrative Officer-Dinesh Kumar Verma CW-2 to prove the documents brought on record from the RTO Office.

10. The learned counsel for the revisionist-accused was given ample opportunity to cross-examine both these court witnesses and again the statements of the revisionist-accused were recorded under Section 313 Cr.P.C. The revisionist-accused once again in his defence stated that the accident was caused due to breakage of the front-axle but refused to give any further evidence in defence.

11. The learned Appellate Court again re-examined and appreciated the entire evidence on record and came to this conclusion that the accident was the result of rash and negligence driving of bus by its driver i.e. revisionist- accused (Vijay Ram). The learned Appellate Court also recorded in its judgment that the negligence driving of the driver of the bus by revisionist- accused was also demonstrated from the fact, which was proved by evidence on record, that after the accident, the driver did not try to avoid the accident but he jumped out of the moving bus as soon as the bus went to the right side. On the basis of the re- appreciation of the entire evidence, the learned Appellate Court came to this conclusion that the learned trial court committed no legal error of fact and law for convicting the revisionist-accused

and the sentence inflicted upon him was in consonance with the loss of lives and injuries to the passengers. The learned Appellate Court also disbelieved the theory of accident due to breakage of the front-axle as suggested by the revisionist-accused in his defence.

12. The revisionist-accused is now before this court, challenging both the impugned judgments and orders.

13. Heard learned counsels for the parties at length.

14. It is submitted by the learned counsel for the revisionist- accused that the learned trial court as well as the Appellate Court wrongly appreciated the evidence on record. He further strenuously argued that the evidence of defence as well as documentary evidence i.e. technical inspection report, was ignored by both the courts by which it was proved that the accident was caused due to breakage of the front-axle of the bus, as mentioned in the technical inspection report. The learned counsel for the revisionist-accused tried to convince this Court that the evidence of technical inspection report which was in favour of the revisionist-accused has been ignored by the learned trial court and in that view of the matter, the judgment and order of conviction suffers from the vices of the perversity and the same can be interfered with. It has also been argued by the learned counsel for the revisionist-accused that the defence evidence adduced by the revisionist-accused as DW-1 and DW-2 has also been ignored by the learned trial court and wrongly appreciated by the learned Appellate Court.

15. It has been further argued by the learned counsel for the revisionist-accused that the accident occurred in the year 2001

and now the revisionist-accused has already undergone a pain of litigation for the last 22 years, at least if this Court comes to this conclusion that the conviction cannot be set-aside, some leniency may be shown while sentencing the revisionist-accused and he prayed that instead of sending the revisionist-accused in jail after so many years, fine may be increased scrapping the sentence of rigorous imprisonment of 02 years.

16. Per contra, the learned State Counsel supported both the impugned judgments and orders by which the revisionist-accused was convicted and sentenced and later on affirmed in the appeal.

17. It is submitted by the learned State Counsel that this is a case of sheer rash and negligent driving in which 07 passengers lost their lives and 35 passengers sustained injuries. He emphatically submitted that the revisionist- accused would have been entitled to leniency but for the reasons he jumped out from the moving bus at the time of accident instead of trying to avoid the accident. This kind of carelessness and irresponsible act of the revisionist-accused would disentitle him of the any sympathy or leniency at the hand of this Court.

18. Having heard the rival contentions of the parties, this Court being aware of its revisional powers, tried to find out any perversity in the impugned judgments and orders which might have been resulted by ignoring the evidence which was available on record by the learned trial court as well as the Appellate Court. There is no manner of doubt in the mind of this Court that while sitting in the revisional jurisdiction, this Court has got no power of re-appreciation of the evidence, which has been concurrently relied upon and believed by the learned trial court as well as by the Appellate Court.

19. I have given a thoughtful consideration to the arguments advanced on behalf of the learned counsel for the revisionist- accused. So far as the argument, that the technical inspection report has not been considered, is concerned, from the record it is quite clear that the learned Appellate Court not only considered it, but proved the said report by calling CW-1 Foreman-Dinesh Chandra Adhikari invoking powers of the Appellate Court provided under Section 391 Cr.P.C. The learned Appellate Court appreciated the technical inspection report and the evidence given by CW-1 Foreman-Dinesh Chandra Adhikari who deposed that it could not be said that after technical inspection of the vehicle as to whether the front-axle broke after the bus fell into ravine or it was already broken before the bus fell into the ravine. The learned Appellate Court after appreciating of the evidence of CW-1 Foreman-Dinesh Chandra Adhikari recorded a finding that the defence raised by the revisionist-accused that the cause of accident was breakage of the front-axle and was not due to his rash and negligence driving, was not legally proved. Thus the argument advanced on behalf of the learned counsel for the revisionist-accused has no weight and the same is rejected.

20. So far as the statement made by the learned counsel for the revisionist-accused to reduce the sentence of imprisonment to that of increasing fine is concerned, does not impress this Court mainly for the reason that from the evidence of PW-4 Bharat Bhushan, who was an injured witness and informant, it is clear that the revisionist-accused instead of avoiding the accident, within no time, in seconds, jumped out of the bus only to save his life, leaving lives of the occupants of the bus in danger, which resulted into the accident causing great loss of life and leaving many injured and maimed for life.

21. Had it been a case where the revisionist-accused-driver of the bus tried of his best to avoid the accident, this argument of reduction of the sentence would have appealed this court and it may think of considering the same. But this is not the situation in this case. In such view of the matter this argument is also rejected. The revisionist- accused is not entitled to any mercy at the hands of this Court.

22. This Court finds no illegality and impropriety in both the judgments and orders impugned in this revision; no interference is required even in the sentence awarded to the revisionist-accused. Hence, the revision deserves to be dismissed.

23. Accordingly the criminal revision is dismissed. The judgments and conviction orders and sentence passed by the learned trial court and that passed by the learned Appellate Court are hereby affirmed. The revisionist- accused is on bail, he shall surrender immediately to serve out the sentence inflicted by the learned trial court; his bail bonds are cancelled, sureties stood discharged.

24. Let the lower court record be sent back to the learned court immediately.

(Pankaj Purohit, J.) 22.08.2023 PN/-