Kishore Chand Vs State of H.P.

The present revision is directed against the judgment dated 22.04.2013 passed by learned Additional Sessions Judge, Una (learned Appellate Court), vide which the appeal filed by the petitioner (appellant before learned Appellate Court) was dismissed and the judgment and order passed by learned Judicial Magistrate, First Class, Court No.1, Amb District Una, (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in

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

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the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present revision are that the police presented a challan before the learned Trial Court for the commission of offences punishable under Sections 279, 337, and 304A of IPC. It was asserted that police received an information on 20.10.2006 at 4:45 pm that one person had died in an accident involving the Parmar bus. The police reduced the information to writing (Ext. PW10/A). ASI Deep Chand (PW10), HC Ashok Kumar, HHC Ramesh Chand and Constable Paramjeet Singh went to the spot to verify the information. Rajni Chandel (PW5) made a statement before the police on the spot that she, her husband Sarwan Kumar Chandel (since deceased), and daughters Namrata Chandel and Ankita Chandel were going to Aloh on 20.10.2006 on the scooter bearing registration No.HP-19-5235. They were riding the scooter on their side at 4:15 pm near Kuthera Kherla when a bus bearing registration No. HP-67-0302 came at a high speed and hit the scooter. The informant and her daughter fell towards the kachha portion of the road, whereas her husband fell towards the mettled portion. The driver reversed the bus and

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crushed the informant’s husband under the rear tyre of the bus. He died on the spot. The injured were sent to PHC Amb for treatment. The accident occurred due to the negligence of the bus driver. The driver and the conductor ran away from the spot. The statement (Ext. PW5/A) was sent to the police station where FIR (Ext. PW9/A) was registered. ASI Deep Chand (PW10) conducted the investigation. He prepared the site plan (Ext. PW10/B). Photographs ( Ext. PW7/A to Ext. PW7/E) whose negatives are Ext. PW7/F to Ext. PW7/K were taken. The inquest on the dead body was conducted and a report (Ext. PW10/C) was prepared. The bus and the scooter were seized vide Memo (Ext. PW4/A). The documents of the bus were seized vide memo (Ext. PW3/A). The documents of the scooter were seized vide memo (Ext. PW6/A). An application (Ext. PW10/D) was filed for conducting the post-mortem examination of the deceased. Dr Yogeshwar Ram Ravi (PW2) conducted the postmortem examination and issued the report (Ext. PW2/A) stating that the death occurred due to the multiple fractures of the skull bones, which was possible by crushing the skull bone with the tyres of the bus. The mechanical examination of the vehicles was conducted by HHC Swaroop Lal (PW4) who found that there was no mechanical defect in the vehicle, which could have led to the

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accident. He issued the reports (Ext. PW4/A and Ext. PW4/B). The statements of the witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.

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The learned Trial Court put the notice of accusation to the accused for the commission of offences punishable under Sections 279, 337 and 304A of IPC to which the accused pleaded not guilty and claimed to be tried.

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The prosecution examined 10 witnesses to prove its case. Sandeep Verma (PW1) and Vijay Kumar (PW5A) are eyewitnesses. Dr Yogeshwar Ram Ravi (PW2) conducted the post-mortem examination. Balwant Singh (PW3) is the owner of the vehicle. HHC Swaroop Lal (PW4) conducted the mechanical examination of the vehicles. Rajni Chandel (PW5) is the informant. Kashmir Singh (PW6) and Sunil Kumar (PW7) are the witnesses to the recovery. Dharambir Singh (PW8) is the owner of the scooter. Deep Chand (PW9) conducted the investigation.

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The accused in his statement recorded under Section 313 of Cr.P.C. admitted that the informant-Rajni Chandel was travelling on the scooter with her husband and her children. He admitted that

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the bus hit the scooter and the informant’s husband died but he claimed that it had happened due to the skidding of the scooter. He admitted that he was driving the bus on the date of the accident. He stated that he was not at fault. The curve was wide. The scooter skidded due to the rain. He examined Jagdish Lal (DW-1) in defence.

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The learned Trial Court held that the prosecution version that the accused could not control the bus, which led to the accident was duly proved. The defence version that the scooter skidded due to the rain was not established. It was proved by the photographs and the reports of the mechanical examination that there were scratches on the right side of the front bumper. This shows that the scooter had hit the front bumper of the bus and not the side of the bus. This falsified the defence version that the scooter had skidded and hit the side of the bus. It was proved by the statements of the witnesses that the bus was reversed and its rear tyres crushed the deceased. The accused failed to keep the bus stationery and he was negligent; hence, the accused was convicted of the commission of offences punishable under Sections 279, 337 and 304A of IPC:

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Offence Punishment

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Under Section 279 of IPC	To undergo simple imprisonment for six months and to pay a fine of ₹500/- and in default of payment of fine to further undergo simple imprisonment for one month.
Under Section 304A of IPC	To undergo simple imprisonment for six months and to pay a fine of ₹1,000/- and in default of payment of fine to further undergo simple imprisonment for one month
Under Section 337 of IPC	To undergo simple imprisonment for two months and to pay a fine of ₹500/- and in default of payment of fine to further undergo simple imprisonment for ten days.
	All the substantive sentences of imprisonment were ordered to run concurrently.

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Being aggrieved from the judgment and order passed by

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the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, (learned First Appellate Court). Learned First Appellate Court held that there were scratches on the front bumper of the bus. It was slightly dented. The paint from the scratches had peeled off. This showed that the scooter had hit the front side of the bus. The accused reversed the bus due to which, the head of the deceased was crushed. The death is directly attributable to the accused. The statement of Jagdish Lal

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(PW1) was not acceptable. His name was not mentioned by any of the prosecution witnesses and his presence on the spot was highly doubtful. The learned Trial Court had rightly held the accused to be negligent; therefore, the appeal was dismissed.

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Being aggrieved from the judgment and order passed by the learned Courts below, the present revision has been filed asserting that the learned Courts below erred in convicting and sentencing the accused. The judgment and order were passed on conjectures and surmises. The evidence was not appreciated as a whole but piecemeal. The prosecution’s witnesses had turned hostile and the view favourable to the accused should have been

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accepted. Vijay Kumar (PW5A) admitted that he was a government employee and his house was situated near the house of the deceased. This witness and the deceased had cordial relations. He was an interested witness and no reliance could have been placed on his testimony. Prosecution’s witnesses did not support the prosecution case and the learned Courts below erred in relying upon the testimony of the informant and Vijay Kumar. It was duly proved that the scooter skidded and hit the bus. There was no negligence on the part of the accused; hence, it was prayed that the

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present appeal be allowed and the judgment and order passed by learned Courts below be set aside.

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I have heard Mr. Surinder Saklani, learned counsel for the petitioner/accused and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

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Mr Surinder Saklani, learned counsel for the petitioner/accused submitted that the learned Courts below erred in convicting and sentencing the accused. Sandeep Verma (PW1) had turned hostile and his testimony and the testimony of Jagdish Lal (DW1) proved that the accident had occurred due to the skidding of the scooter. The bus moved somewhat after applying the brakes, which is natural on a hilly terrain. The accused cannot be faulted for the same. He relied upon the judgment of this Court in Ajay Kumar versus State of H.P. 2012 HLJ 7512 in support of his submission.

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Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State submitted that the defence version that the scooter had hit the side of the bus was rightly discarded by the learned Courts below based on the report of the mechanical expert and the photographs of the spot. The learned Courts below had rightly held that the accused failed to control the

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bus. The bus reversed and the head of the deceased was crushed under its rear tyres. The proximate cause of the accident was a failure to control the bus, which shows the negligence of the accused. Therefore, the learned Courts below had rightly convicted and sentenced the accused and no interference is required with the judgments and order passed by the learned Courts below.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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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 is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207:

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“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 for the purpose of satisfying 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 inferior court. The object of the provision is to set right a patent defect or an

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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.

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This position was reiterated in State of Gujarat v.

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Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was observed:

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“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:

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“ 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 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,

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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.

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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 muchadvanced stage in the proceedings under the CrPC.”

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15. Similar is the judgment in State of T.N. v. R. Soundirarasu,

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(2023) 6 SCC 768: 2022 SCC OnLine SC 1150 wherein it was observed at page 814:

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“79. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice if it is not corrected. The revisional power cannot be equated with the appellate power. A Revisional Court cannot undertake a meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been

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charged. It is conferred to check grave error of law or procedure.”

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The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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Jagdish Lal (DW1) stated that he was travelling in a New Parmar bus on 20.10.2006. There was a curve at a distance of 3½ kilometres from Amb. The road was narrow. The speed of the bus was slow. The bus was negotiating a curve. The scooter came at a high speed from Nehriyan. Four persons were riding the scooter. The scooter crossed the driver's side. When it was near the rear tyre, it slipped. The children and wife fell towards the kachha portion of the road and one person fell towards the tyres. When there was a noise, the driver stopped the bus. The bus reversed and the tyre crushed the head of the scooterist. The bus driver stopped the bus after the scooter had hit it. He looked outside. The bus reversed slightly. He remained on the spot. The police had enquired his name. The accident occurred due to the negligence of the scooterist because he had failed to stop the scooter despite the road being narrow.

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The statement of this witness clearly shows that he has not disputed the accident. He has also stated that the accident

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occurred due to the reversal of the bus after the application of the brake. Both the learned Courts below held that his presence on the spot was not proved as his name was not suggested to any person. Even if it is assumed that he was present on the spot and the accident had taken place as suggested by him, his testimony does not rule out the negligence of the accused.

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Rule 15 of the Central Motor Vehicles Rules, 1989 deals with the driving test. Rule 15(3) provides the requirement of passing the driving test. Rule 15(3)(f) reads that the driver should be able to stop and restart the vehicle on a steep upward incline making proper use of the hand brake or the throttle and the foot brake without any rolling back. Thus, a person required to pass a driving test should be able to stop the vehicle on a steep incline or start the vehicle on a steep incline without the vehicle rolling back. Thus, a statutory duty has been cast upon the driver of the vehicle to ensure that the vehicle does not roll back when it is stopped on an incline or is started on an incline. The ability to ensure that the vehicle does not roll back is a precondition to getting a driving license. In the present case, as per the testimony of the defence witness, the driver had failed to adhere to this duty. His bus reversed after it was stopped and this reversal of the bus led to the

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crushing of the skull of the deceased. Thus, breach of duty was the proximate cause of the accident and the death of the deceased. Therefore, the testimony of this witness establishes that the accident occurred due to the negligence of the accused in failing to ensure that the vehicle does not roll back when it is stopped on an incline.

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Sandeep Verma (PW1) stated that when the bus reached near Kuthera Kherla, a scooter came from Nehriyan. The scooterist applied the brake. The scooter skidded and fell. The accused was driving the bus. He looked out of the window. He became frightened and could not control the bus. The bus reversed due to which, the rear tyre crushed the skull of Sarwan Kumar, who died on the spot. There was no negligence on the part of bus driver. He had stopped the bus and was looking outside. He could not control the bus due to which, the bus reversed.

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This witness has also stated that the accused could not control the bus due to which the bus reversed and crushed the skull bone of the deceased; therefore, according to this witness, the proximate cause of the accident was lack of control of the bus by the accused. Since the accused being the driver was under an

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obligation to ensure that the bus did not roll back after applying the brake, therefore, his testimony also establishes the negligence of the accused.

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Vijay Kumar (PW5A) stated that the accused was driving the bus at a normal speed. When the bus reached near Kuthera Kherla, a scooter came from the opposite side. The bus negotiated the curve and hit the scooter. The accused was negligent because there was sufficient space. The scooter fell. The scooterist fell ahead of the rear tyre. The passengers shouted and the driver reversed the bus. The rear tyre crushed the head of the scooterist, who died on the spot. His statement also shows that the proximate cause of the accident was the reversal of the bus due to which, the rear tyre crushed the skull of the deceased.

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Rajni Chandel (PW5) stated that she was riding the scooter with her husband and children. When they reached Kuthera Kherla, a bus bearing registration No. HP-67-0302 came at a high speed. The driver hit the scooter towards the wrong side. The scooter fell. Her husband fell near the rear tyre. The passengers shouted and the driver reversed the bus. The skull of her husband was crushed under the rear tyre, and he died on the spot.

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Her statement also establishes that the bus had reversed

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due to which, the skull of the deceased was crushed. Hence, as per this witness also, the proximate cause of the accident was the reversal of the bus.

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Therefore, all the witnesses including the defence witness have consistently stated that the bus reversed after the accused had stopped the bus. Witnesses have given different versions regarding the reversal of the bus but they are consistent that the bus had rolled back after the accused stopped it. While the defence witness stated that the bus reversed on its own, Sandeep Verma stated that the bus was reversed due to a lack of control by the accused and Vijay Kumar (PW5A) stated that the accused himself reversed the bus. Even if the defence version is accepted as correct that the bus reversed on its own, the negligence of the accused cannot be ruled out as stated above. Hence, the learned Courts below had rightly held that the accused was negligent in driving the bus because he had failed to control the rolling of the bus after the application of the brake.

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It was duly proved by the statement of the eyewitnesses that the deceased had died on the spot after his skull was crushed.

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This is duly corroborated by the statement of Dr Yogeshwar Ram Rahi, who conducted the post-mortem examination and found that the deceased had died due to the multiple fractures of the skull, which could have been caused if the tyre of the bus crushed the head of a person. This witness was not cross-examined at all which means that his testimony is not disputed. Hence, it was duly proved that Sarwan Kumar had died due to the crushing of his skull caused by a motor vehicle accident.

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HHC Swaroop Lal (PW4) conducted the mechanical examination of the vehicle. He issued the report (Ext. PW4/A), in which it was mentioned that the right side of the scooter was pressed. The indicator lights on the right side were damaged. The left side of the scooter was damaged and scratched due to the fall towards the left side. A black colour appeared on the right side of the scooter.

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The report of the mechanical examination of the bus shows that there were scratches on the right side of the bumper of the bus. The bumper was pressed and its black paint was peeled off. These reports show that the right side of the scooter had hit the right-side bumper of the bus. This is also apparent from the

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presence of the black colour on the right side of the scooter and the absence of the black colour on the bumper of the bus. Hence, both the learned Courts below had rightly relied upon the reports of the mechanical expert to hold that the defence version that the scooter had skidded and hit the middle of the bus is not correct. The mechanical report proves that the front side of the bus had hit the scooter. It is trite to say that man may lie but circumstances do not and learned Courts below were justified in relying upon the circumstances in preference to the ocular version.

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The accused did not dispute in his statement recorded under Section 313 of Cr.P.C. that the informant’s daughter had sustained injuries in the accident and the learned Courts below had rightly held the accused to be guilty of the commission of an offence punishable under Sections 337 of IPC.

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In Ajay Kumar (supra), this Court held that the principle of res ipsa loquitur cannot be applied when the evidence is contradictory. In the present case, the Court had not applied the principle of res ipsa loquitur and the cited judgment will not assist the defence.

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It was laid down by this Court in State of H. P. Versus Sushil Kumar 2010(1) HLJ 298 that no leniency should be shown to a person convicted for driving a vehicle in a rash or negligent manner. It was observed:

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“21. In so far as the sentence part is concerned, in my considered opinion, the learned trial Court has lost sight of the fact that there has been a spiralling increase in motor vehicular accidents in recent years. Thousands of valuable lives are being lost by a sheer act of rash and negligent driving, which is more than the loss of lives in any war between countries.

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The Supreme Court in Dalbir Singh v. State of Haryana (2000) 5 SCC 82 on the question of sentence in a case of an identical nature stated:-

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"13. While considering the question of a sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of an automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that rash driving need not necessarily cause an accident; or even if any accident occurs, it need not necessarily result in the death of any human being; or even if such death ensues, he might not be convicted of the offence and lastly, that even if he is convicted, he would be dealt with leniently by the Court. He must always keep in mind the fear psyche that if is convicted of the offence for causing the death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the Courts can play,

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particularly at the level of trial Courts, for lessening the high rate of motor accidents, due to callous driving of automobiles."

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Hon'ble Shri Justice K.G. Balakrishnan, as he then was, while speaking for the Court, in State of Karnataka v. SharanappaBasnagoudaAregoudar AIR 2002 Supreme Court 1529 , where the accused was held guilty for causing the death of four persons and the High Court took a lenient view in sentencing the accused, observed:-

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"We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge should not have interfered with the sentence imposed by the Court, below. It may create and set an unhealthy precedent and send wrong signals to the subordinate Courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, Courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the Courts should have a deterrent effect on potential wrongdoers and it should be commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to the larger interest of the society and it is needless to add that passing of sentence on the offender is probably the most public face of the criminal justice system."

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Therefore, on the examination of the matter in the above circumstances and on facts, I think no word is sufficient to criticize the conduct and prudence of the learned trial Magistrate dealing on the point of sentence in a shockingly reckless manner. Looking at the gravity of the offence, the sentence imposed by the learned trial Court is wholly inadequate. The learned trial court has inflicted a fleabite

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sentence on the respondent who has not atoned adequately for his misadventure.”

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