Mohinder Pal alias Bitoo vs State of Himachal Pradesh

Kuldip Singh, Judge

This revision has been directed against judgment dated 16.5.2006 passed by Additional Sessions Judge, Solan in Criminal Appeal No. 31-NL/10 of 2003 affirming judgment dated 21.10.2003 in Criminal Case No. 50/2 of 2001 passed by Sub Divisional Judicial Magistrate, Nalagarh convicting the petitioner for offences punishable under Sections 279, 337, 304A IPC and sentencing the petitioner for three months simple imprisonment and fine of Rs. 500/- for offence punishable u/s 279 IPC, three months simple imprisonment and fine of Rs. 500/- for offence punishable u/s 337 IPC and sentence of six months simple imprisonment and fine of Rs. 1,000/- for offence punishable u/s 304-A IPC, with default clause. The prosecution case, in brief, is that on 25.12.2000 information was given to police that near place Bhud one bus and van met with an accident. On this, HC. Harmesh Kumar alongwith other policemen proceeded to the spot. The statement of PW-4 Bhupesh Kumar u/s 154 Cr.P.C Ex. P-4 was recorded and then FIR Ex. P-3 came to be registered.

The further case of the prosecution is that complainant and his wife Sushma, PW-5 Bachan and his wife PW-6 Veena on 17.12.2000 had come from Panipat to Shimla in a taxi HP-01-1003. They proceeded to Manali and then to Chandigarh via Nalagarh. Sushma, PW-5 Bachhan and PW-6 Veena were sitting on the back seat of the taxi. PW-4 Bhupesh complainant and driver were sitting on the front seats. At a place about 8 km. from Nalagarh bus bearing registration No. HP-12-4413 came from Pinjore side in high speed. The driver of the bus started overtaking and hit the taxi in which complainant and others were sitting. It has been alleged that on account of rash and negligent driving of the petitioner Sushma and driver of the taxi died and others were injured. The MLCs of the injured were obtained. The post-mortems on the bodies of the dead persons got conducted. The mechanical report Ex. P-1 of both the vehicles was obtained. On completion of investigation, report u/s 173 Cr.P.C. was submitted.

The notice of accusation was put to the petitioner for offence punishable under Sections 279, 337 and 304A IPC. The petitioner pleaded not guilty and claimed trial. The prosecution has examined 12 witnesses and produced some documents to prove accusation. The statement of petitioner was recorded u/s 313 Cr.P.C. He denied the prosecution case. He did not lead any evidence in defence. On completion of trial, the Sub Divisional Judicial Magistrate convicted and sentenced the petitioner, as noticed above. In appeal, the appellate Court affirmed the judgment of conviction recorded by the trial Court, hence revision.

I have heard Mr. Ramakant Sharma, learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General for the respondent. It has been submitted on behalf of the petitioner that the two Courts below have erred in convicting and sentencing the petitioner by misconstruing and misinterpreting the evidence on record. The accident took place not due to rash or negligent driving on the part of the petitioner but due to the negligence, fault of the taxi driver, who struck the taxi in the bus which just started after some passengers, alighted from the bus on the way. It has been submitted that the evidence led by the prosecution nowhere establishes the negligence of the driver. The learned Assistant Advocate General has supported the impugned judgment and has submitted that re-appreciation of the evidence is not possible in revision. The two Courts below have recorded concurrent findings of facts. In any case, the view taken by the two Courts below emerges from the evidence on record.

In order to appreciate rival contentions, it is necessary to refer to the evidence which has come on record. PW-1 Pritam Chand, Mechanic has proved the mechanical report Ex. P1 of bus No. HP-12-4413 and van HP-01-1003. PW-2 Rajinder did not support the prosecution and he was declared hostile. In his earlier part of the statement, he has denied that petitioner was driving the bus in high speed. In later part of his statement, he has stated that he has not seen the actual collision. It has also come in his statement that he is running a puncture repair shop and petitioner is his customer. PW-3 ASI Salim Ahmed has proved FIR Ex. P-3.

PW-4 Bhupesh complainant has stated that Happy was driving taxi No. HP-01-1003. The petitioner was driving the bus in high speed and struck against the taxi, as a result of which, complainant sustained injuries, the taxi driver died. The wife of the complainant also died. The accident took place due to rash and negligent driving of the bus driver. Three persons sustained injuries and two died. He has proved the statement u/s 154 Cr.P.C. Ex. P-4. He denied that accident did not take place due to negligence of the bus driver.

PW-5 Bachhan Juneja has stated that Happy was driving taxi HP-01-1003. PW-4 Bhupesh was sitting on the front seat of the taxi and accident took place with the bus. He sustained injuries, he became unconscious and came to know that two persons died in the accident. The complainant also sustained injuries.

PW-6 Veena has stated that they were returning to Chandigarh via Nalagarh but accident took place with bus which was being driven by the petitioner. Her husband sustained injuries, she also sustained injuries. The wife of Bhupesh died, taxi driver also died on the spot. The accident took place due to the negligence of the bus driver. They were taken to hospital and then to PGI, Chandigarh. In cross-examination, she has stated that they reached the place of accident about 7.00 p.m., it was dark. The taxi came in front of the bus. The taxi was in normal speed. She doesn''t know that bus driver was alightening passengers. She is not in a position to tell whether the accident took place due to the negligence of the bus driver.

PW-10 Ramesh Kumar, Investigating Officer recorded the statement u/s 154 Cr.P.C. Ex. P-4, prepared site plan Ex. P-5 and took photographs Ex. P-6 to Ex. P-11. In cross-examination, he has stated that on the spot the vehicles were in close position and nobody had tampered their position. The total width of the road was 16 feet. He has denied that site map Ex. P-5 has been wrongly prepared. There were skid marks of the bus and no skid marks of the taxi. He has denied that the photographs of the bus were taken after parking the bus on wrong side.

The petitioner in his statement u/s 313 Cr.P.C. has admitted that Bachhan, Veena and Bhupesh sustained injuries in the accident. He has also admitted that Rajesh and Sushma died in the accident. He has shown his ignorance regarding the spot map Ex. P-5 and Photographs Ex. P-6 to Ex. P-11.

Ex. P-4 is the first version given by PW-4 Bhupesh in his statement u/s 154 Cr.P.C. He has stated that a bus came from Pinjore side and the driver of that bus negligently over took another vehicle and hit the taxi in which he and others were travelling. In spot map, Ex. P-5 total width of the road on the spot has been shown 19 feet. At the time of the accident, the bus has been shown on the wrong side. At point ''E'' in Ex. P-5, skid marks 10 feet of the bus have been shown. PW-10 has also stated that there were no skid marks of taxi on the spot. The positions of the vehicles were not changed before taking photographs Ex. P-6 to Ex. P-11. The perusal of photographs Ex. P-6 to Ex. P-11 also reveals that the bus after leaving its side was on wrong side. There is no reason why the bus should come on the wrong side on a straight road. This establishes the truthfulness of the prosecution case that bus overtook some vehicle and in that process came on wrong side and hit the taxi in which PW-4 and others were travelling at the time of the accident.

It appears from the trend of cross-examination of the prosecution witnesses that defence has projected the case that at the place of accident, bus had just started after alightening some passengers. The scrutiny of the material placed on record indicates that this defence is false. In case the bus had just started after alightening some passengers how then the bus came on the wrong side of the road at the time of the accident that has not been explained. It has come in the evidence and in spot map Ex. P-5 that there were 10 feet skid marks of the bus on the spot and no skid marks of the taxi. The skid marks of the bus have not been explained by the defence. The skid marks of the bus falsifies the defence version that at the place of accident, bus just started and taxi driver hit the bus in almost standing position. PW-10 investigating officer has not at all been cross-examined by the defence on the point whether it came in his investigation that bus had just started after alightening some passengers at the place of the accident. The petitioner has not denied the accident, injuries sustained by injured in the accident and two deaths in the accident. The defence projected by the petitioner on the basis of material on record is not probable but is false.

The two Courts below have appreciated the material on record properly. The view taken by the two Courts below emerges from the evidence on record. No perversity in the impugned judgment has been shown. The evidence has been considered only to satisfy whether there is misconstruction and mis-appreciation of the evidence by the two Courts below as submitted on behalf of the petitioner. No misconstruction and mis-appreciation of the evidence has been established. The sentence imposed by the trial Court and affirmed by the Appellate Court is not excessive keeping in view that two persons died and three persons injured in the accident. In Ex. P-4 it has been stated that PW-4 got married on 7.12.2000 with Sushma. In the accident Sushma died on 25.12.2000. There is no merit in the revision. In view of above, revision is dismissed. The bail bonds of the petitioner are cancelled. The petitioner is directed to surrender to serve the sentence imposed.