Allowed

Suresh Kumar Dogra v. State

Himachal Pradesh HC19 May 2017CR.R/158/2009

Case brief

AI extract

What is this about?

In criminal revision, the High Court acquitted the petitioner-convict who had been sentenced for rash driving causing an accident. The Court quashed the conviction, holding that the prosecution failed to prove criminal negligence and relied insufficiently on the driver's testimony while ignoring documentary evidence suggesting the accused drove in his own lane.

What did the court decide?

Impugned judgment is set aside; petitioner acquitted of charges; sentence findings quashed; fine refunded if deposited; personal bond cancelled; surety discharged.

Suresh Kumar Dogra Vs State — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 158 of 2009

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Decided on: 19^th May, 2017

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Suresh Kumar .......Petitioner

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Versus

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State of H.P. ...Respondent

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

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Whether approved for reporting?¹ Yes. For the petitioner: Ms. Sunita Sharma, Advocate. For the respondent: Mr. Varun Chandel, Addl. A.G.

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Dharam Chand Chaudhary, Judge (Oral)

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Convict Suresh Kumar has filed this petition with a prayer to quash and set aside the judgment dated 15.10.2009 passed by learned Session Judge, Hamirpur in Criminal Appeal No. 58 of 2009, whereby learned lower appellate Court has affirmed the judgment passed by learned Chief Judicial Magistrate, Hamirpur in Criminal Case No. 229-I of 07/50-II/2008 and dismissed the appeal. 2. As a matter of fact, the petitioner (hereinafter referred to as the ‘convict’) has been convicted by learned trial Court for the commission of an offence punishable under Section 279 and 337 of the Indian Penal

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

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Code and sentenced to undergo simple imprisonment for a period of three months and 1000/- as fine under Section 279 IPC, whereas, to undergo simple imprisonment for a period three months and 500/- as fine under Section 337 IPC. Learned lower appellate Court has concurred with the findings recorded by learned trial Court and maintained the findings of conviction and sentence recorded against the petitioner-convict.

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It is seen that accident of HRTC bus No. HP-38 7618 enroute Deotsidh to Hamirpur had taken place near Jagtamba Udyog at Kehdru District Hamirpur with maruti car No. HP 55-4095 on 15.10.2007 at 4.30 p.m. Petitionerconvict was on the wheel of the offending car. After the accident, he fell unconscious. Another occupant of the car also received injuries on his person. The driver of the offending bus Tilak Raj (PW-2) had shifted the petitionerconvict to Bhota hospital and later on to the hospital at Hamirpur. The police came to the hospital, where statement of PW-2 was recorded under Section 154 Cr.P.C Ext. PW-2/A. On the basis of the same FIR came to be registered. During the course of investigation conducted

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by the police spot map Ext. PW-11/B was prepared. The place of accident was got photographed vide photographs Ext. P-1 to Ext. P-8. Both the vehicles were taken into possession along with the documents. The MLC Ext. PW-8/B of the convict-petitioner that of Sunil Kumar, occupant of offending car Ext. PW-8/A were obtained. The mechanical examination of the bus vide report Ext. PW-9/A and that of the car vide Ext. PW-9/B was got conducted from HHC Ramesh Chand (PW-9) M.T.O Police Line, Hamirpur. PW-5 Bishan Dass and PW-7 Smt. Sandhya Devi were associated as eye witnesses to the accident. Besides the complainant, PW-2, conductor of the offending bus and Kirpal Singh (PW-4) were also associated to substantiate the prosecution case. The remaining witnesses, however, are formal as they were associated during the course of the investigation to prove link evidence. On the completion of the investigation, challan was filed against the petitioner-convict.

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Learned trial Magistrate taking into consideration the police report and the documents annexed therewith and after being satisfied qua the

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existence of a prima-facie case under Section 279 and 337 IPC charged him vide notice of accusation dated 2.7.2008. The convict, however, pleaded not guilty to the charge. The prosecution had thus produced the evidence oral as well as documentary to prove its case against him.

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The statement of accused was recorded under Section 313 Cr.P.C. He has admitted that while on the wheel of the offending car HP-55 4095 on 15.10.2007. Its accident had taken place with HRTC bus bearing registration No. HP 38 7618. He along with Sunil Kumar, the another occupant of the car had received injuries on their person and they were medically examined by PW-8 Dr. Sanjay Sood. The injuries on their person, however, were simple in nature. The car which was being driven by him was taken into possession by the police and the documents thereof were produced before police by its owner PW-4 Manoj Kumar. His driving licence Ext. PW-11/A was taken into possession by the police. Rest of the incriminating circumstances appearing against him in the prosecution case were, however, denied either being wrong or for want of knowledge. In his defence, it was

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pleaded that he is innocent and driving the car in his own side of the road. It is the driver of the bus overtaking another vehicle on a curve hit the car with the bus on middle of it i.e. near fuel tank.

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Learned trial Court on appreciation and on hearing the parties on both sides has arrived at a conclusion that the prosecution has pleaded and proved beyond all reasonable doubt that the convict-petitioner was driving the offending car in rash and negligent manner and as a result thereof, the accident had occurred. He, therefore, was convicted and sentenced under Section 279 and 337 IPC.

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The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the reasons recorded by both Courts below while convicting the petitioner-convict are based on surmises, hypothesis and conjectures. The material contradictions in the testimony of prosecution witnesses have been completely ignored. The factum of the so called prosecution witnesses PW-5 and PW-7 have not supported the prosecution case at all has been completely ignored

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and to the contrary reliance has been placed on the sole testimony of PW-2, the driver of offending bus and its conductor PW-4, while recording the conviction against the convict-petitioner. The photographs produced in evidence not at all advance a substantial piece of evidence have erroneously been given undue weightage. 8. On analyzing the rival submissions and going through the records, a question that evidence available on record was cogent, reliable and sufficient to persuade both Courts below to record findings of conviction against the petitioner-convict has arisen for determination by this Court. Before coming to the adjudication thereof, it is desirable to take note of as to what in legal parlance constitute an offence punishable under Section 279 and 337 IPC. This Court in Raj Kumar vs. State of H.P., 1997(2) Shim.L.C. 161 has held that mere rashness and negligence is not sufficient for recording the findings of conviction against an offender, however, such rashness and negligence must be criminal rashness and negligence which in view of the ratio of the judgment ibid is more than mere carelessness or error of judgment. The prosecution is

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also required to plead and prove that it was an act on the part of the accused alone responsible for the accident in question. The High Court of Chhatisgarh in Smt. Manju Baradia vs. State of Chhatisgarh, 2002(1) Accidents Compensation Judicial Reports 24 has gone one step further while holding that the speed of offending vehicle alone is no criteria to come to the conclusion that the same was being driven in rash and negligent manner but other factors such as density of traffic, width of the road and the attempt of the driver to take precautions to avert the accident etc. also need to be taken into consideration. It is also observed in this judgment that the latest trend to hold a driver of the vehicle guilty in case of accident is contrary to the law unless it is shown by the prosecution by leading cogent, reliable and positive evidence that it was accused alone rash and negligent, hence responsible for the accident in question.

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Therefore, in view of the above legal position, it is crystal clear that rashness and negligence due to which an accident is occurred should not be mere

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rashness and mere negligence and rather criminal rashness and criminal negligence.

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Now it is to be seen that the prosecution has been able to prove beyond all reasonable doubt that rashness and negligence on the part of the convictpetitioner alone has resulted in this accident. The material prosecution witnesses associated by the prosecution were PW-5 Bishan Dass and PW-7 Smt. Sandhya Devi. As a matter of fact, they were associated to give eye witness count of the accident. The perusal of their testimony makes it crystal clear that they were not at all present on the spot when the accident had taken place and rather arrived at the spot when the accident had already taken place and the convict-petitioner as well as the other occupant of the vehicle were lying in an injured condition there. The remaining part of their testimony is not so important because they have deposed about the accident of bus and car having taken place on the spot and the injured removed to hospital for treatment. The prosecution case, therefore, hinges upon the testimony of PW-2 Tilak Raj and PW-4 Kirpal Singh, none else but the

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driver and conductor of the offending bus. When the defence of the convict-petitioner as emerges from the trend of cross-examination and appeared in his statement recorded under Section 313 Cr.P.C is that the accident occurred at a stage when PW-2 while driving the bus was negotiating a curve as well as over taking another vehicle came on the wrong side of road, it is not safe to place reliance on the testimony of said witness and also that of the conductor of the bus to arrive at a conclusion that the accident had occurred due to rash and negligent driving attributed to the convict. Some tangible evidence could have come on record from the testimony of the passengers traveling in the bus because as per own admission of the conductor of the bus, the passengers were traveling in the bus at the time of accident. It is not known as to why the efforts were not made to associate the passengers traveling in the bus. Therefore, oral evidence is not at all sufficient for recording findings of conviction and sentence against the convict-petitioner.

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Now if coming to the documentary evidence, the spot map Ext. PW-11/B has been heavily relied upon to

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connect the convict-petitioner with the commission of the offence. The position of both vehicles in this document make it crystal clear that while HRTC bus on the curve is adjacent to the white dotted driving line in its right side leaving considerable space which has been mentioned as 4” 8’ in its left side, the car due to strike with the bus near the diesel tank got reversed and is standing partly in pucca portion of the road, whereas, a portion whereof is in kuchha portion. The car is in its own side of the road. Even the conductor PW-4 has also admitted so while in the witness box. No doubt, in the same breath, he clarified that it got pushed behind due to its strike with the bus. However, his testimony that the car was not being driven in rash and negligent manner or in its wrong side cannot be believed to be true for the reasons that from the circumstances prevalent on the spot, the car atleast was being driven in its own side of the road and not in wrong side. Though nothing can be said about the speed of the car, however, in a case of accident, speed of the vehicle is not so relevant nor on the basis of high speed of a vehicle, it can be said that the accident had taken place due to

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high speed. Any how, there is even no evidence to suggest that the rashness and negligence on the part of the convict-petitioner was criminal rashness or criminal negligence. Therefore, spot map Ext. PW-11/B is also of no help to the prosecution case.

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Now if coming to the photographs. It is crystal clear that the bus is touching the white dotted dividing line in the middle of the road leaving sufficient space in its left side. The car, no doubt, had struck against the bus but it is not on account of rash and negligent driving attributed to the convict-petitioner and rather the possibility of the driver of the bus was rash and negligent, cannot be ruled out for the reason that had it been not so, the accident would have not occurred in view of road at that place was quite wide. The accident had taken place on a curve. The possibility of the driver of the bus while negotiating a curve and while overtaking another vehicle had drove the same in centre of the road i.e. touching white dotted line and while negotiating curve struck against the car, cannot be ruled-out.

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Therefore, both Courts below have failed to appreciate the evidence available on record in its right perspective and went wrong while recording the findings of conviction against the petitioner-convict. True it is that the High Court in exercise of its revisional jurisdiction should not normally interfere with the findings of facts recorded by both Courts below on appreciation of the evidence available on record, however, in case the evidence is misread, misconstrued or misinterpreted causing thereby miscarriage of justice, serious in nature to the aggrieved party, the High Court in exercise of its revisional jurisdiction can certainly quash and set aside the impugned judgment being perverse as well as the findings are vitiated on account of misappreciation, misconstruction and misreading of evidence available on record.

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In view of what has been said hereinabove, the impugned judgment is not legally sustainable and the same, as such, is accordingly set aside. Consequently, the accused is acquitted of the notice of accusation put to him for the commission of an offence punishable under Section 279 and 337 of the Indian Penal Code and the

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findings of sentence recorded against him are also quashed and set aside. The amount of fine, if already deposited by him, be refunded under proper receipt. The personal bond he executed shall stand cancelled and surety discharged.

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This petition is accordingly allowed and stands disposed of. Pending application(s), if any, shall also stand disposed of.

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May 19, 2017 (Dharam Chand Chaudhary) (naveen) Judge

Suresh Kumar Dogra v. State

Case brief

What is this about?

What did the court decide?

Suresh Kumar Dogra v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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