Disposed

Virender Kumar v. State

Himachal Pradesh HC4 May 2016CR.R/153/2007

Case brief

AI extract

What is this about?

In a criminal revision, the High Court rejected the appellant's challenge to conviction for rash and negligent driving. The Court found no perversity in the lower courts' findings and modified theSentence, reducing the cumulative term from six months to three months per offence while upholding the conviction.

What did the court decide?

Conviction upheld but sentence modified to three months simple imprisonment for each offence and Rs.1000 fine per offence to run concurrently.

Virender Kumar Vs State — Cheque Dishonour | Himachal Pradesh HC (2016)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 153 of 2007

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Reserved on: 29.04.2016

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Date of decision: 04.05.2016

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Virender Kumar alias Kukkar … Appellant Versus State of Himachal Pradesh … Respondent

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Coram :

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The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

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Whether approved for reporting?¹ Yes.

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For the petitioner: Mr. N.K. Thakur, Senior Advocate with Ms. Jamuna Thakur, Advocate. For the respondent: Mr. V.S. Chauhan, Additional Advocate General

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Ajay Mohan Goel, J.:

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The present revision petition has been filed against judgment dated 31.08.2007 passed by learned Sessions Judge, Una, in Cr. Appeal No. 26 of 2005, vide which, learned Appellate Court has upheld the conviction and sentence passed by the Court of learned Judicial Magistrate First Class, Court No. 1, Amb, in case No. 112-1 of 2004 dated 26.07.2005, under Sections 279, 337 and 338 I.P.C.

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The case of the prosecution was that an FIR was registered on 18.12.2003 i.e. FIR No. 275/2003 on the statement

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1Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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of one Gurmeet Singh, complainant to the effect that he runs a shop of welding at Athman road, Amb and on 18.12.2003 he was going to Mubarikpur on his personal scooter bearing registration No. PB-10C-0131, which was being driven by Dalbir Singh alias Pankaj. The complainant was the pillion rider. When the scooter reached near Dhiman Workshop, a bus came from Mubarikpur side and one other bus came from behind the said bus. The second bus which was coming from behind tried to overtake first bus and in this situation, complainant brought his scooter to katcha portion of the road but despite this, the over-taking bus hit the scooter, as a result of which, the person who was driving the scooter as well as the complainant fell on the road and sustained injuries. Injured were brought to hospital by local persons and then later on, the complainant came to know that the bus which caused the accident was bearing registration No. HP-19-4444 and this bus was being driven by accused Virender Kumar. After obtaining the MLCs of the injured persons, mechanical reports as well as photographs, site plan was prepared and police filed final report, on which the learned Court took cognizance and summoned the accused. The accused pleaded not guilty and claimed trial.

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In order to substantiate its case, the prosecution examined 13 witnesses. PW-1 Sanjay Kumar, who as per the prosecution was sole witness, did not support the prosecution

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case. PW-2 Ashok Kumar was also an eye witness, who turned hostile.

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PW-3 Dr. R.K. Garg issued MLC in respect of both the injured persons. In his statement he categorically mentioned that the injuries sustained by the injured can be caused in road accident. PW-4 is Dheeraj Kumar, in whose presence, documents and driving licence of the accused were taken into possession.

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PW-5 Gurmeet Singh has corroborated the version of the first information report and stated that the bus which caused the accident was over-taking other bus and in this process it hit their scooter. He deposed that the accident was a result of rashness and fault of accused-driver. In his crossexamination, he has admitted that he does not have a driving licence but thereafter stated that he possesses it. He has categorically denied the suggestion that he was driving the scooter. 6. PW-6 Dalbir Singh deposed that on the fateful day, he was going towards Mubarikpur. He has further stated that in the process of over-taking one bus, the accident was caused by the accused–driver of the offending bus. He has categorically mentioned that when he saw the other bus trying to over-take the first bus, he brought the scooter towards katcha portion of the road but despite this, the bus hit the scooter. He categorically deposed that the accident was a result of rash and negligent driving of the accused.

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PW-7 Bal Krishan deposed that he handed over the driving licence of Dalbir alias Pankaj to the police. PW-8 HHC Sarup Lal, mechanically examined both the vehicles and he found no mechanical defect in either of the vehicles leading to the accident. PW-9 was HHC Rishi Raj, in whose presence insurance, R.C. of offending bus and driving licence of the accused was taken into possession. PW-10 was HC Chaman Lal, in whose presence R.C. of the scooter was taken into possession.

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PW-11 Sham Sunder took the photographs and stated in his cross-examination that before he clicked photographs, the vehicle was at its own side, which was got parked by the police and thereafter, he clicked the photographs. He also accepted the suggestion that the persons who came on the spot were not imputing the fault on the scooterist.

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PW-12 HC Sudershan Kumar registered FIR on receipt of ruka. PW-13 HC Suresh Pal was posted in Amb Thana on the fateful day and had recorded the statements of the injured.

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The learned trial Court on the basis of the material placed on record, convicted the accused for the commission of offences punishable under Sections 279, 337 and 338 I.P.C. and sentenced the accused/convict as under:-

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(i) to undergo simple imprisonment for three months under Section 279 I.P.C.;

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(ii) to undergo simple imprisonment for three months for the offence under Section 337 I.P.C. and

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(iii) to undergo simple imprisonment for six months for the offence under Section 338 I.P.C. and also to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo simple imprisonment for two months.

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Feeling aggrieved, the accused filed Criminal Appeal No. 26 of 2005, which was dismissed on 31.08.2007 by the Court of learned Sessions Judge, Una. The learned Appellate Court came to the conclusion that the prosecution was able to bring home the guilt of the accused. The learned Appellate Court held that the accused in his statement had admitted that he was on the wheel of the bus at the material time but denied the allegations of rashness and negligence. The learned Appellate Court on the basis of appreciation of material on record came to the conclusion that there was nothing intrinsically unbelievable in the account of the injured more so when the statement of the scooterist (PW-6) and FIR Ext. PW5/A as well as site plan Ext. PW13/A and the photographs Ext. P-2 and Ext. P-4 to P-7 were corroborative thereof. The learned Appellate Court came to the conclusion that the bus had hit the scooter after swerving to the extreme right side of the road as was evident from the photographs and there is no plausible material to lend assurance to the accused’s plea that the scooterist had tried to cross the road after emerging from a passage in the eastern direction and further there was no explanation why the accused steered the bus to the right side

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of the road. On these basis, the learned Appellate Court also upheld the conviction passed by the learned trial Court that the accident was a result of the rash and negligent driving of the bus by the accused.

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Mr. N.K. Thakur, learned Senior Advocate, appearing for the petitioner has argued that both the learned Courts below have failed to appreciate that the prosecution was not able to prove that the accident was a result of rash and negligent driving on the part of the accused. Mr. Thakur, has argued that there were major contradictions in the statements of PW-5 and PW-6, which have been conveniently ignored by both the learned Courts below. Mr. Thakur has further argued that there was sufficient material on record to prove that the scooter was being driven by complainant Gurmeet Singh and he concocted the entire story because he was not possessing driving licence authorizing him to ply the scooter. He reiterated that the accident was a result of negligence on the part of the scooterist and the same was not on account of the negligence of the accused. In order to substantiate this, he drew my attention to the statements of PW-8 mechanic, PW-11 photographer, as well as the photographs taken on the site and the report of the mechanic Ext. PW8/B. Mr. Thakur further submitted that the eye witnesses had not supported the case of the prosecution and in these circumstances, it could not be said that the prosecution was able to bring home the guilt of the accused

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beyond reasonable doubt. Thus, he contended that the judgments under challenge were perverse and were liable to be set aside. 13. Mr. V.S. Chauhan, learned Additional Advocate General, on the other hand argued that there was neither any infirmity nor any perversity in the findings arrived at by both the learned Courts below. He contended that the accused has not stated that there was animosity between him and the injured as a result of which, he was falsely implicated in the case. Further, Mr. Chauhan argued that the accused had himself admitted that he was driving the bus which was involved in the accident. As per Mr. Chauhan, the fact that the accused was driving the bus on the wrong side which hit the scooter on the extreme side and that too on the katcha portion of the road is self speaking of the fact that the accused was guilty of rash and negligent driving. According to Mr. Chauhan, it is not as if in each and every case, the case of the prosecution has to be substantiated by involving independent witness. In the facts and circumstances of the present case, according to him, the statements of the injured were corroborative to bring home the guilt of the accused beyond any shadow of doubt.

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I have heard learned counsel for the parties and have also perused the records of the case.

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In my considered view, there is no infirmity or perversity in the judgments under challenge. The conclusion arrived at by the learned trial Court is based on correct appreciation of the material on record. The learned counsel for the petitioner could

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not demonstrate from the record that the findings arrived at by the learned trial Court were perverse vis-a-vis the material on record. Similarly, even with regard to the judgment passed by the learned Appellate Court, the learned counsel for the petitioner could not substantiate that the findings were not borne out from the record. According to me, the learned Appellate Court had upheld the judgment passed by the learned trial Court after appreciating the contentions raised before it and by passing a reasoned and a speaking judgment. 16. I agree with the submissions of the learned Additional Advocate General that it is not as if in each and every case, the case of the prosecution can be believed only if it is corroborated by independent witnesses. According to me, in the present case, the statements of the injured persons inspire confidence. The statements are trustworthy and the learned counsel for the petitioner could not impinge the credibility of these witnesses. Therefore, in my view, the prosecution in the present case had proved its case beyond reasonable doubt that that the accused was guilty of the offences levelled against him. The learned Courts below have correctly appreciated the material on record and on the basis of said appreciation, have rightly concluded that the accused was guilty of rash and negligent driving. In these circumstances, I do not see any reason to interfere with the judgments passed by both the learned Courts below.

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There is no infirmity with the judgments passed by the learned Courts below. It cannot be said that any material particular has been overlooked either by the learned trial Court or by the learned Appellate Court. There is no perversity in the findings arrived at by the learned courts below.

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It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. The High Court in revision cannot in absence of error on a point of law, re-appreciate evidence and reverse a finding of law.

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It has been further held by the Hon’ble Supreme Court that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals.

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The Hon’ble Supreme Court in Ram Briksh Singh and others Vs. Ambika Yadav and another, (2004) 7 Supreme

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Court Cases 665, has again held that Revisional Court can interfere with the findings of lower court where the Courts below have overlooked material evidence.

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Thus it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not

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required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case.

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Lastly, Mr. N.K. Thakur has contended that the sentence which has been imposed upon the petitioner is harsh and this Court may take a lenient view in this regard.

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The accident took place in the year 2004. The accused has already undergone the ordeal of trial, appeal and revision for the last more than 12 years. In these facts and circumstances, in my considered view, the ends of justice will be served in case the sentence imposed upon the accused is modified to the following

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effect:-

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(i) to undergo simple imprisonment for three months under Section 279 I.P.C.;

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(ii) to undergo simple imprisonment for three months for the offence under Section 337 I.P.C. and

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(iii) to undergo simple imprisonment for three months for the offence under Section 338 I.P.C. and also to pay a fine of Rs.1000/- and in default of payment of fine, to further undergo simple imprisonment for two months.

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It is further ordered and directed that the sentence of substantive imprisonment awarded above, shall run concurrently.

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With the said modification in the sentence, the

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conviction is upheld and the revision petition stands disposed of in

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the above terms. No order as to cost.

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(Ajay Mohan Goel), May 04, 2016 Judge (BSS)

Virender Kumar v. State

Case brief

What is this about?

What did the court decide?

Virender Kumar v. State

Case brief

What is this about?

What did the court decide?

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