Dalip Singh vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

1 .The instant revision petition has been maintained by the petitioner against judgment dated 12.11.2010, passed by learned Additional Sessions Judge, Mandi Camp at Karsog, in Cr. Appeal No. 33/2007, whereby appeal filed by the appellant/petitioner against the Judgment/order of conviction passed by Sub-Divisional Judicial Magistrate, Karsog, District Mandi, H.P. was dismissed.

Briefly stated the facts giving rise to the present petition are that on 06.08.2006 the complainant in his car, bearing registration No. HP-33-B-2221, was travelling from Shimla to Karsog alongwith his brother, wife and children. When the car reached near Bhakrot, a tanker bearing registration No. HP-15-2017 came from the other side. Though the complainant though applied brakes on seeing the tanker, but the tanker hit the car in a high speed due to which, front portion of the car was damaged in the accident. Occupants of the car did not suffer any injury. It appeared that at the time of accident, the driver was intoxicated, due to which, he could not control the tanker, so it hit against the car and accident took place due to rash driving of the driver of the tanker.

Learned counsel for the petitioner has argued that there is no evidence to suggest that the tanker was being driven in high speed. He further argued that the learned courts below have rejected the defense that at the time of accident, the complainant himself was not possessing any driving license. He argued that the Investigating Officer should have asked for the driving licence of the complainant, while investigating the case. He argued that the learned Courts below have applied the principal of res-ipsa-loquitor while convicting the petitioner and the judgments of learned Courts below are liable to be set aside. He further argued that the learned Courts below have also mis-appreciated the evidence.

On the other hand, learned Additional Advocate General has argued that the accident has occurred on account of rash and negligent driving of the accused, as he was driving the vehicle in a high speed and the same hit the car to its left side, which is clear from the photographs of the spot. So, in these circumstances, the judgments of the learned Courts below are liable to be upheld.

To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail.

The case of the prosecution is that, the accident had occurred due to high speed of the tanker. Both PW-1 Manoj Kumar and PW-2 Anish Kumar have stated in their examination that at the time of accident, the car was towards its own side and accident took place due to high speed of the tanker. This fact is corroborated by site plan Ext. PW-5/B and place of occurrence that has been shown as mark B. In the site plan skid marks of 12ft and 15ft behind the tanker were visible. Total width of road was 27 ft, out of which 10 ft. was metalled, 14ft was unmetalled towards left side and 3 ft was metalled towards right side of the tanker. This fact is also clear from the photographs, wherein, car has been shown towards left side of the road and the tanker is shown towards right side of the road. Photographs also show the skid marks behind the car. Therefore, it is duly proved by circumstances on record that tanker was being driven towards extreme right side and there was sufficient space towards left side and there were skid marks behind the tanker. The proximate cause of the accident was high speed of the tanker and it was being driven on right side of the road, therefore, the fact that the complainant had no driving license cannot be excepted to be a reason for the accident, as the car was towards the left side. Hence, the fact that the police had not seized the driving license of the complainant would not assist the accused.

Indeed the reversionary jurisdiction is very wide and the Court can interfere to test the correctness, legality or even the propriety of any findings, sentence or order. The Hon’ble Supreme Court in Dulichand v. Delhi Admn., AIR 1975 SC 1960, held that “the jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon re-appreciation of the evidence. Thus, the interference of the High Court in criminal revisions is limited and it is called for only in exceptional cases of gross miscarriage of justice, manifest illegality or perversity and not merely because another view was possible, However, keeping in view atypical nature of the case, it would be apt to examine the evidence and see on what basis the vehicle of the petitioner was ordered to be confiscated.

On analyzing the statements of PW-1 and PW-2, it is clear that PW-1 while appearing in the witness box has deposed that he was driving car bearing registration No. HP-33-B-2221 and his wife and children were also sitting in the car, when he reached near Bhakrot, a tanker bearing registration No. HP-15- 2017 came in a high speed and hit the car due to which front portion of the car was damaged. The petitioner was driving the tanker and it appeared that he was intoxicated. During cross-examination he has admitted that his driving license was not seized by the police and the vehicle was being driven in high speed and car had hit the tanker. He has denied the fact that petitioner was driving tanker on his own side.

PW-2 Anish Thakur has also corroborated the testimony of PW-1. He has deposed that he was travelling in a car bearing registration No. HP-33-B-2221, which was being driven by his brother near Bhakrot, a tanker being driven by the petitioner, came in high speed and hit the car and petitioner was driving the tanker. During cross-examination his brother had not produce driving license before the police. He admitted the fact that there was slight curve at the place of accident.

Both these witnesses were cross-examined to the effect that the petitioner was driving the vehicle in high speed, the only allegations against the accused is that he was driving the vehicle in high speed, but there is nothing about rash and negligent driving. Now, coming to the report of Investigating Officer with respect to the spot map and the photographs, it also shows that there is nothing on record to conclude that the accused was driving the vehicle in a rash and negligent manner. The allegation of fast speed cannot be termed as rash and negligent driving which is clear from the judgments rendered by this High Court.

In State of H.P. versus. Amar Nath, Latest HLJ 2018 (HP) Suppl. 763, it has been held as under:-

“18 It would be noticed that the instant is a case where apart from the bare statement of PW- 1 that the vehicle was being driven by the petitioner at a high speed, there was no attempt made to establish that there was any rash and negligent act on the part of the driver of the vehicle. “High speed” is an expression which is relative and subjective. Therefore, merely because of the vehicle was being driven at a high speed does not mean that the driver was driving rashly and negligently.”

In Yash Pal Rana vs. State of Himachal Pradesh in Latest HLJ 2019 (HP) (Suppl.) 171, it has been held as under:-

“9. Leaving everything aside, this Court finds no specific evidence led on record by the prosecution to prove rash and negligent driving by the petitioner-accused. As has been taken note of above, PW-1 in a very casual manner has only stated that offending vehicle was being driven in high speed, but high speed cannot be a criteria to conclude rash and negligent driving, rather to prove guilt, if any, under Section 279 IPC, it is/was incumbent upon the prosecution to prove act of rashness and negligent so as to endanger the human life. But in the case at hand, prosecution has not been able to place on record specific evidence, if any, with regard to rash and negligent act, if any of accused, which endangered the human life. In this regard, reliance is placed on judgment rendered by the Hon’ble Apex Court in Branham Dass v. State of Himachal Pradesh (2009) 3 SCC (Crl) 406, which reads as under:-

“6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused-appellant was negligent in any way. On the contrary what has been stated is that on person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.

Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.

15.No doubt in the case at hand, unfortunately, one of the occupants namely Ms. Kamlesh lost her life on account of injury suffered by her in the alleged accident, but since there is no evidence that the vehicle in question was being driven by accused in such rash and negligent manner so as to endanger the life of the occupants of the car, courts below have fallen in error by holding the accused guilty of having committed offence punishable under Sections 279, 337 and 304A, IPC.

Consequently, in view of the detailed discussion made here-in-above as well as law laid down by the Hon’ble Apex Court, the present appeal is allowed and the judgment of conviction recorded by the court below is set aside. The petitioner- accused is acquitted of the charges framed against him under Sections 279, 337 and 304-A of IPC. Pending application(s), if any, shall stand disposed of.”

Further, PW-1 and PW-2 cannot be said to be independent witnesses, as they were the occupants of the car and their statements have to be examined cautiously , even to the extent of rash and negligent driving, their statements have to be seen with suspicion, as being busy road, there were many independent witnesses at the spot, however, no independent witness was associated in the proceedings. Even otherwise also, the factum with respect to rash and negligent driving is not proved conclusively and beyond reasonable doubt. It is settled law that benefit of suspicion has to be given to the accused, as criminal justice delivery system works on a fundamental principle, viz, “let hundred guilty be acquitted, but one innocent should not be convicted.” In these circumstances, the only conclusion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Consequently, the present appeal is allowed, the judgments/order of conviction and sentence, passed by learned Courts below are set aside and the accused is acquitted of the charges framed against him by allowing the present appeal.

In view of the above, the petition is disposed of, so also pending application(s), if any.