Balbinder Singh vs State of Himachal Pradesh

Dharam Chand Chaudhary, J.

1.Petitioner herein is a convict. He has been convicted by learned Judicial Magistrate 1st Class, Court No.3, Mandi for the commission of offence

punishable under Sections 279 and 337 of the Indian Penal Code and sentenced to undergo simple imprisonment for two months and pay Rs. 500/- as

fine under Section 279 IPC and to undergo simple imprisonment for two months and pay Rs. 500/- as fine under Section 337 IPC vide judgment dated

2nd March, 2006 passed in Police Challan No. 20-II/2000. In appeal, learned lower appellate Court has affirmed the findings of conviction recorded

against the convict-petitioner and dismissed the appeal vide impugned judgment dated 18.01.2007.

2.The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the manner in which the accident has occurred

is not at all proved. There is no evidence to show that the injured witness PW-4 Tara Chand sustained injuries on his person in the accident of the

vehicle being driven by the convict-petitioner. There is again no proof qua the vehicle was being driven by him in a rash and negligent manner. Also

that, complainant PW-1 Balam Ram and other eye witnesses examined by the prosecution in support of its case have turned hostile. Such evidence as

has come on record by way of their testimony could have not been considered nor relied upon to record the findings of conviction. The evidence as

has come on record otherwise is stated to be contradictory in nature and full of discrepancies.

3.Now if coming to the facts of this case. The convict-petitioner allegedly was driving maruti car bearing registration No. DL-5C-6095 from Kullu side

towards Mandi on 12.12.1999 at 12.30 p.m. Complainant PW-1 Balam Ram was standing outside his shop at Takoli at that time. Injured witness PW-

4 Tara Chand was going to a Barber shop at Takoli on his bicycle. The convict-petitioner as a result of rash and negligent driving hit the injured Tara

Chand in wrong side of the road. Irrespective of applying the brakes, he failed to control the vehicle. The accident was witnessed by Balam Ram

aforesaid and PW-2 Hem Raj. PW-3 Girdhari Lal and PW-6 Sangat Ram allegedly also witnessed the accident.

4.The accident was reported to the police by PW-1 Balam Ram. His statement Ext. PW-1/A was recorded under Section 154 Cr.P.C and on the

basis thereof, FIR Ext. PW-7/A was recorded. The investigation was conducted by PW-12 Head Constable Abhimanyu of Police Station, Aut,

District Mandi. The medical examination of the injured was conducted by PW-9 Dr. Niru Kapoor. Spot map Ext. PW12-E was prepared. The maruti

car along with its documents and keys was taken into possession vide recovery memo Ext. PW-1/B. The same was got mechanically examined from

PW-5 (Mechanic) Head Constable Brestu Ram, who has submitted the report Ext. PW-5/A. The photographs of the place of accident Ext. PW-12/A

and Ext. PW-12/B were also taken. The negatives thereof Ext. PW-12/C and Ext. PW-12/D were also added in the record. The statements of

witnesses namely Hem Raj, Girdhari Lal and Shaunkia Ram Ext. PW-12/F, Ext. PW-12/G and Ext. PW-12/H were recorded as per their version.

5.On the completion of investigation, report under Section 173 Cr.P.C., was filed in the trial Court. Learned trial Judge on hearing the accused and

learned Public Prosecutor and on finding a prima-facie case made out against the convict-petitioner framed and put the notice of accusation under

Section 279 and 337 of IPC against him. He, however, pleaded not guilty and claimed trial. Therefore, the prosecution in order to prove its case

against him had examined 12 witnesses in all.

6.Learned trial Judge on consideration of the oral as well as documentary evidence produced by the prosecution during the course of trial has arrived

at a conclusion that the prosecution has proved its case against the convict-petitioner beyond all reasonable doubt. He, as such, was convicted and

sentenced as pointed out at the very out set. In appeal, learned lower appellate Court has dismissed the same and affirmed the judgment passed by

learned trial Court. This petition was admitted for hearing and in the interim, substantive sentence of imprisonment passed against the convict-

petitioner by learned trial Court and affirmed by learned lower appellate Court though was ordered to be suspended, however, subject to his furnishing

personal bonds in the sum of Rs.5000/- with one surety in the like amount to the satisfaction of learned trial Court with an undertaking that in case the

revision petition is not admitted he shall surrender to serve out the sentence. The convict-petitioner though had put in appearance through Mr. Peeyush

Verma, Advocate, however, subsequently absconded. Even bail bonds in terms of the interim order were also not furnished. He even could not be

traced out when fresh warrants were ordered to be issued against him.

On 29.03.2018, when this petition came to be listed for hearing, Mr. Lalit Sehgal, Advocate appearing vice Mr. Peeyush Verma, Advocate had

pleaded no instruction. Therefore, following order came to be passed on that day: - “Mr. Lalit Sehgal, Advocate, has again pleaded no instructions

on behalf of the convict-petitioner. Though as per order dated 07.12.2017 appropriate proceedings in accordance with law, including declaring him as

proclaimed offender, have been ordered to be initiated, however, now he is not an offender and rather a convict, hence, the proceedings under Section

82 Cr.P.C. against him are not admissible. Now, it is for the trial Court to ensure that the execution of sentence has been passed against him in

accordance with law. So far as this petition is concerned, the same has to be considered and disposed of on merits. The impact of the convict-

petitioner absconded and not available, is also to be taken into consideration during the course of arguments. List on 7th April, 2018. An authenticated

copy of this order, be sent to learned trial Court for compliance.â€​

8.Again today, there is no appearance on his behalf, therefore, this Court is proceeded to hear learned Additional Advocate General and decide the

petition finally.

9.Be it stated that the complainant PW-1 Balam Ram has turned hostile to the prosecution, however, when allowed to be cross-examined by learned

APP, he has admitted his signatures on the statement Ext. PW-1/A, he made before the police under Section 154 Cr.P.C. Not only this but, he has

admitted portion ‘A’ to ‘A’ of his statement Ext. PW-12/F recorded under Section 161 Cr.P.C., which reveals that he was present in the

shop at the time of accident and noticed the offending car being driven in a rash and negligent manner from Kullu side and the same having hit the

cyclist. As a result thereof he fell down and became unconscious. His cycle also got broken. Accident as per this portion of his statement had

occurred due to rash and negligent driving attributed to the convict-petitioner. Being so, PW-1 irrespective of having turned hostile has supported the

entire prosecution case during the course of his cross- examination. PW-3 Girdhari Lal though has also turned hostile, however, when cross-examined

by learned APP, he has admitted his signatures on his statement Ext. PW-12/G and also admitted portion ‘A’ to ‘A’ thereof. The victim

of the accident is Tara Chand, PW-4. His statement also supports the entire prosecution case. PW-6 Sangat Ram again is an eye witness to the

occurrence. He has stated that at the time of accident, he was standing near to his ‘Khoka’ at Takoli. He noticed the offending car being driven

by the accused having struck against the cycle of PW-4 Tara Chand. The car, according to him, was being driven in a high speed. Although, he has

been subjected to cross-examination, however, learned defence counsel has failed to shatter his version in his examination-in-chief. The another

material witness is PW-8 Sonkhia Ram. As per his version, car was being driven by the convict-petitioner in a high speed and as a result thereof, the

accident had taken place. A new plea in defence that PW-4 struck against a bus is not proved because the suggestions to this effect put to PW-8

were denied being wrong. He rather is very specific in stating that it is the convict-petitioner who was driving the offending car at a high speed and hit

the cycle on which PW-4 was going to Barber shop.

10.In addition to the oral evidence, the prosecution case also finds support from the position reflected in the spot map Ext. PW-12/E. At place mark

‘A’, the offending car could be stopped after applying the brakes up to a distance of 30 feet. The skid marks on the road are visible in this

document. It is due to over speed and out of control, the car came in right side of the road and hit the cycle of PW-4 i.e. who was going on his own

side of the road. This circumstance was put to the convict-petitioner in his statement recorded under Section 313 Cr.P.C., to which he has expressed

his ignorance. The photographs Ext. PW-12/A and Ext. PW-12/B also depict the position of the vehicle which has gone from left to right and the skid

marks are also visible on the road.

11.The present, as such, is a case where the prosecution has successfully pleaded and proved that the accident occurred due to rash and negligent

driving attributed to the convict-petitioner. In view of such evidence available on record, the burden got shifted on the convict-petitioner, however,

except for his statement under Section 313 Cr.P.C., he has not opted for producing any evidence to prove otherwise that he was not driving the

offending car in a rash and negligent manner. In his statement also, the incriminating circumstances appearing against him in the prosecution evidence

have been simply denied either being incorrect or for want of knowledge without any explanation thereto.

12.The link evidence as has come on record by way of the testimony of PW-4 Head Constable Brestu Ram also reveals that when the offending

vehicle was mechanically in order, the only cause of accident was rash and negligent driving and none-else. PW-9 Dr. Niru Kapoor has proved the

injuries which PW-4 Tara Chand received on his person in the accident. PW-10 Head Constable Ram Lal and PW-12 Head Constable Abhimanyu

are the Investigating Officers, who have partly investigated the case. Their testimony also lends support to the prosecution case.

13.The re-appraisal of the evidence by this Court lead to the only conclusion that it is the convict-petitioner alone responsible for the accident, which

has occurred with car bearing registration No. DL-5C-6095 being driven by him at the relevant time in a rash and negligent manner. It is not a case of

mere rashness and negligence, however, in view of the evidence in the shape of skid marks visible on the spot, the present is a case of criminal

rashness and negligence and as such, the present is a fit case where it can be said that the convict-petitioner by driving the car in a rash and negligent

manner has endangered the life of other road users. He, as such, has rightly been convicted and sentenced by both Courts below.

14.The impugned judgment, therefore, neither suffers from any illegality nor irregularity. There is no error apparent on the face of the record. The

impugned judgment, as such, calls for no interference by this Court in the exercise of its limited revisional jurisdiction. The revision petition is

accordingly dismissed.

15.Learned trial Judge to ensure that the convict-petitioner is arrested and made to serve out the sentence.