Gautam Yadav vs State Of Uttarakhand

Sharad Kumar Sharma, J

This Criminal Revision against the judgement of conviction for offences under Sections 279 and 304A of IPC, is taken up in the revised call of the cause list, none has appeared in the revised call, and the matter since being a criminal revision cannot be dismissed in default. The same is being proceeded with to be considered on merits on considering the material on record and after hearing the Government Advocate. This Criminal Revision which has been preferred by the revisionist (convict), invoking Section 397 to be read with Section 401 of Cr.P.C. by putting challenge to the impugned judgement and order dated 28th May 2015, as passed by the 2nd Additional District and Sessions Judge, Rishikesh, District Dehradun in Criminal Appeal No. 106 of 2017, Gautam Yadav v. State of Uttarakhand, by virtue of which the revisionist has been convicted for commission of an offence, punishable under Sections 279 and 304A of the IPC, which was registered at Police Station, Rishikesh, District Dehradun and as a consequence thereto, it has resulted into affirming of the judgement dated 21st September 2012, as rendered by the Judicial Magistrate, Rishikesh, District Dehradun in Criminal Case No. 332 of 2009, State v. Gautam Yadav, wherein the revisionist has been convicted to undergo six months of rigorous imprisonment for commission of an offence under Section 279 and, one year rigorous imprisonment for commission of an offence under Section 304A IPC and a penalty of Rs. 5,000/- has been imposed upon him for the offence under Section 304A of IPC which had been concurrently proved by both the Courts below, an application of evidence led by the parties to the proceedings.

The brief facts of the case, as involved in the instant case and pleaded by the prosecution are that, on 22nd July 2006, when a group of people were going to Rishikesh after collecting the holy water from river Ganges, when they had reached at Raiwala near Jay Maa Ashram, a motorcycle bearing motorcycle No. HR 26AA-4221, which was of a Hero Honda make Model CD100, which was being ridden by the present revisionist and due to of his negligent and rash driving, he had met with an accident and as a consequence thereto, the neighbourer of the complainant, namely Smt. Prabhavati Devi was hit by the rider of the motorcycle, she is said to have fell down and suffered grievous injuries. When her condition was found precarious and deteriorating, she was rushed to the Hospital, called as Shri Gadhbindra Hospital, Haripur Marg, Sadhubela. By the time she could be brought to the hospital, she was declared as to be brought dead. Consequently, an FIR was registered by the complainant i.e. neighbourer of the deceased Smt. Prabhavati Devi and the revisionist along with his above numbered Motorcycle was taken into custody by the police and accordingly a report was registered against him for commission of offence under Section 279 and 304A of the IPC.

After submission of the chargesheet by the investigating agency for the aforesaid offences, the proceeding was taken up before the Court below, however the convict/revisionist had denied the fact of commission of offence as complained of against him, and he has submitted that no such incident has even taken place by his indulgence in it. But the witnesses, which were adduced by the prosecution as PW-1, Vishwa Nath Tiwari, PW2 Bainu Jha, PW3 Hari Raj Tyagi, PW4 Dr. Sunil Kumar, who conducted the post-mortem upon the deceased, PW5, constable Devraj, PW6 Dr. Anil Kumar, PW7 Ram Singh Negi, PW8, S.I. Sharad Chaudhari. All altogether goes to show that the incidence of 22nd July 2006 did chanced resulting to thet death of Smt. Prabhavati Devi.

On their examination before the Court below and after considering the technical inspection report, which was conducted and placed on record with regards to the incident and the vehicle involved in the accident, as exhibit (ka-2) and the Chik FIR which was placed on record as evidence as Exhibit ka3, the copy of the GD that is Exhibit 4, the punchnama i.e. Exhibit 5, the documents pertaining to the handing over of the body of the deceased Exhibit 6, and the charge sheet that is Exhibit 6 (ka) and the site plan paper and post-mortem report as Exhibit Ka 7.

The learned trial Court, after considering the aforesaid statements as recorded by the prosecution witnesses and on appreciating the exhibits which were placed on record, which fortify the fact that the cause of death of late Smt. Prabhavati Devi, has been caused on account of rash and negligent driving of the Motorcycle driven by revisionist, because it has been narrated and proved by the witnesses of prosecution which were placed before the Court below it showed that the Motorcycle i.e. the offending vehicle was being driven by the revisionist in a rash and negligent manner. Initially the motorcycle has hit a pole and thereafter it has dashed against the deceased Prabhavati Devi, who consequently due to intensity of collision, she fell down on the pebbles, which were lying in the surrounding area, resulting into injuries on her person which was being caused upon her and thus it was contended by the prosecution that as per the considerations which was made in the site plan and as per the findings which have been recorded in the post-mortem report, the cause of death of late Prabhavati Devi was on account of an ante-mortem injuries, which have been suffered by the deceased late Prabhavati Devi.

Even in the statements which has been recorded of the accused/convict under Section 313 of Cr.P.C. if the same is taken into consideration on its merits, rather he had submitted that he admits the fact that on the date when the accident had occurred, he was driving the motorcycle and it was he who had hit the deceased late Prabhavati Devi and he further admits that as a cause of the collision, the deceased late Prabhavati Devi fell down and later on she succumbed to her injuries. The revisionist had tried to take a defence to the effect that merely that the accident did occurred on account of the collision between his motorcycle and the deceased late Prabhavati Devi, but it cannot be said that merely because of the fact that the accident which has chanced, he was responsible for the cause of the accident on account of his rash and negligent driving which was a fact which according to revisionist, was not proved by any of the cogent evidence being brought on record. What he wanted to carve out the distinction is that even if there happens to be a collision between his motorcycle and the deceased resulting into the death of a person that it itself will not suffice for the purpose to level an allegation of commission of offence under Section 279 to be read with Section 304A of IPC, because it becomes incumbent on the prosecution to prove that there was an element of negligence and rashness in riding the vehicle by the revisionist which is condition precedent and important element to be established for prosecuting the person for the aforesaid offences. Rather in the statements as recorded under Section 313 of Cr.P.C, the revisionist has submitted that when he was riding the vehicle, then the deceased late Smt. Prabhavati Devi all of sudden came in front of the moving vehicle, which has resulted into the accident and consequential death of her's due to the aforesaid collision.

In support of their case, the prosecution have adduced as many as 8 witnesses including the eyewitness of the said accident and prosecution in its examination-in-chief, they admitted the offence and the incident which has occurred on 22nd July 2006. Furthermore, the cause of death being on account of the accident was also affirmed by the witness of PW2, Bainu Jha who was the eyewitness who was present on spot and who had seen the accident, he had affirmed the fact that after eating the langar when the deceased was standing outside the gate of Jai Maa Aashram and was about to wash her hands, a Motorcycle came from the opposite direction and hit her due to which she fell down on the pebbles lying around the place of accident and thereafter it was also stated by PW2 that the said accident was caused after the revisionist hit the poles first and then when the motorcyclist became unbalanced and out of his control which has resulted into the accident.

PW3, Hari Raj Tyagi who was a technical expert who examined the site and the motorcycle, has submitted his technical report i.e. exhibit ka2 wherein he has affirmed the fact that the motorcycle has first before hitting deceased, hit a pole and then it hit a block of rock which too had broken down and it was thereafter that it had collided as against the deceased Smt. Prabhavati Devi. Looking to the technical expert report that in itself shows that at the time when the accident has occurred, the motorcycle was being ridden at a very high speed and the rider had lost its balance and control over the vehicle, as soon as it hit the pole and consequently the late Smt. Prabhavati Devi.

PW6 Dr. Anil Kumar, who had conducted the post-mortem on 22nd July 2006 at about 2:00 a.m. on the deceased he has submitted in his report that the cause of death of the deceased was on account of an excessive collection of blood due to internal bleeding towards the lungs area and due to the said reason the water got accumulated in the respiratory system of the deceased resulting into her death. It was also submitted in the post-mortem report i.e. exhibit ka7, that the cause of the death was on account of internal injuries which was suffered by the victim due to the accident. This fact pertaining to the set of allegation as already dealt above was also supported by the statement of PW8 i.e. the Investigating Officer/Sub Inspector, Sharad Chaudhary, who prepared the charge sheet and the site plan and submitted the documents before the learned trial Court and has also appeared in the witness box to record his statement and in the statement thus recorded by the Investigating Officer, he too has affirmed the incident which has occurred on 22nd July 2006. Consequently, the learned trial Court, after considering the statements particularly that of the eyewitness PW1 i.e. Vishwa Nath Tewari to the effect that the deceased was standing by the side of the road after having langar and when she was about to wash her hands, a motorcycle which was being driven rashly and negligently, dashed against her due to which Smt. Prabhavati Devi met with sad demise.

The aforesaid fact, as recorded in the statement of PW1 was supported by the statement of PW2, who was yet another eyewitness of the accident. On account of the fact that as per the exhibit 7 i.e. site plan and on account of the finding which has been recorded in the statement of prosecution witness PW2 Bainu Jha and PW6 that is Dr. Anil Kumar, the cause of death of late Prabhavati Devi has been affirmed to have been caused on account of the collision which has taken place between the deceased and the motorcycle of the revisionist which was being ridden by the revisionist and which has been attributed in the post-mortem report as to be the cause of death of late Smt. Prabhawati Devi. On an appreciation of the evidence and the exhibits which were placed on record, the learned trial Court on judicially scrutinizing the aforesaid documents and in particular the medical report and the post-mortem i.e. exhibits ka5 and ka7, it has been held out that the cause of death of late Smt. Prabhavati Devi was on account of the accident caused due to rash and negligent driving of the motorcycle by the convict/revisionist and consequently, the Judicial Magistrate by the impugned judgement dated 21st September 2012 had imposed a punishment of six months rigorous imprisonment for the commission of offence under Section 279 of IPC and has imposed a sentence of one year rigorous imprisonment for the commission of offence under Section 304A of IPC and a fine of Rs. 5000/- had been imposed upon the revisionist.

Being aggrieved against the judgement of conviction dated 21st September 2012, as rendered by the Additional Judicial Magistrate, Rishikesh, District Dehradun, the convict/revisionist has preferred a Criminal Appeal being Criminal Appeal No. 106 of 2012, Gautam Yadav v. State of Uttarakhand and the learned Appellate Court of 2nd Additional District and Sessions Judge, Rishikesh District Dehradun, too after taking into consideration the statements of the witnesses as recorded before the Court below as well as the judicial pronouncements relied by the revisionist herein to the effect that looking to the set of allegations and the circumstances under which the accident has occurred, it cannot be ruled out that the accident was caused on account of the cause of contributory negligence. This aspect of plea of contributory negligence which was raised after drawing an inference from the ratio as laid down by this Court in the judgement as reported in 2014 (2) UC 1387, Laxman v. State of Uttaranchal and a judgement rendered by Delhi High Court in Rajesh Kumar v. State in Criminal Revision No. 490 of 2008 relied before the Court below. The Court has held that the manner in which the statement has been recorded by the eye witnesses of the accident and also considering the technical expert report, it cannot be said that the accident has resulted into on account of any contributory negligence on part of the deceased person because at the time of accident, the deceased was shown to standing on the side of road, after having langar and was stationary, it was rather the motorcycle which was having momentum when it hit the deceased, besides this the place where the motorcycle hit the deceased, it was not the road, because report shows that after she was hit by the motor cycle she fell down on the pebbles which were scattered in the nearby places, which was not the road, and considering the entire evidence on record and ruling relied to show that the fact that the accident has occurred on account of contributory negligence and particularly in view of the statements as recorded in the proceedings under Section 313 of Cr.P.C, the Court has held out that it is a well settled case which will be falling within the ambit of negligence rash driving as contemplated under Section 279 of IPC and the consequential resulting into commissioning of an offence under Section 304A of IPC on account of the death of late Smt. Prabhavati Devi. As per evidence on record particularly the statement of witnesses and that of the revisionist recorded under Section 313 Cr.PC, it was not the case of contributory negligence to attract the ratio on which reliance has been placed by the revisionist.

It is contended by the prosecution and as considered by the appellate Court too that since at the relevant point of time when the accident has occurred on 22nd July 2006, since it was a period during which the Kanwar Mela was going on, and the eyewitnesses who had appeared in the prosecution had rather undoubtedly established the fact of occurrence of the accident and the factum of rash and negligent driving of the motorcycle by the revisionist. Thus, the learned appellate Court too after recording a finding and on considering the post-mortem report and the cause of death has affirmed the judgement as recorded the learned trial Court in its judgement dated 21st September 2012, dismissing the Appeal by its judgement dated 28th May 2015.

After having scrutinize the propriety of the judgement and the reasons as rendered by both the Courts below and in particular the technical expert's report to be read with the report of the post-mortem submitted by PW6, and his statement as recorded in the proceedings before the Court below, it draws an unflinching inference that the manner in which the motorcycle was being driven by the revisionist was absolutely rash and negligent riding of the vehicle because it is not that the vehicle has straight away hit the deceased person, but rather prior to it, it first hit the pole thereafter a rock which had broken down, as per the finding which has been concurrently recorded by both the Courts below and due to the momentum and its intensity of the uncontrolled vehicle with which it has hit the deceased person it has resulted into her death.

Thus, on an overall consideration of the findings which has been recorded by both the Courts below, this Court is of the view that the finding recorded by both the Courts below on appreciation of evidence, do not suffered from any mis-appreciation of the evidence or wrongful appreciation of the evidence by the Courts below, thus the judgement of conviction is hereby affirmed and the bail, which was granted by this Court on 30th July 2015 would stand cancelled. The bonds which were executed by way of deposits for getting the bail is hereby discharged. Subject to the condition that the revisionist surrenders himself before the Court to serve the sentence as inflicted by the Courts below and affirmed by this Court for undergoing the imprisonment for the offences under Section 279 and 304A of IPC. Consequently, this Court does not find any merit in the revision because the cause of accident, the cause of death and the nature of injuries which stand supported by the post-mortem goes to show that the death of late Smt. Prabhavati Devi was caused on account of internal haemorrhages, this Court does not find any error in the judgements impugned. Consequently, the revision fails and is hereby dismissed.

Sentence and penalty as awarded by both the Courts below are affirmed. Revision is accordingly dismissed.