Ramesh Chandra vs State of U.P. and Another

Aditya Nath Mittal, J.—This criminal revision has been filed against judgment and order dated 23.1.2010 passed by Additional Sessions Judge, Court No. 2, Etawahin Criminal Appeal No. 36 of 2009, Ramesh Chand v. State of U.P. and Another, by which the judgment and order passed by Chief Judicial Magistrate, Etawah on 24.3.2009 has been upheld and the conviction has been maintained. Learned Counsel for the revisionist has submitted that the revisionist was not named in the F.I.R. but the Court below has not considered this aspect. The ill-fated bus was coming from Farrukhabad and Scooter was also coming from Farrukhabad. Due to break of mudguard of the Scooter the accident has taken place for which the revisionist was not responsible. It has also been submitted that the revisionist has now since retired, therefore, a lenient view maybe taken because the incident took place about 17 years ago i.e. on 3.5.1996.

Learned A.G.A. has defended the impugned order.

I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence.

As a broad proposition, the interference may be justified, (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely.

In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon''ble Supreme Court in State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, , has held that the High Court while hearing revisions does not work as a Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.

Hon''ble the Apex Court in Jagannath Choudhary and Others Vs. Ramayan Singh and Another, , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring detect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In Munna Devi Vs. State of Rajasthan and anr, , it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate Courts are required to do.

Hon''ble the Apex Court in State of Karnataka Vs. Appa Balu Ingale and others, , has held that generally speaking, concurrent findings of fact arrived at by two Courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner.

In the present case the FIR was lodged on 3.5.1996 at 11.00 a.m. regarding the incident of 3.5.1996 at 9:30 a.m. alleging that when the son of the complainant was driving his Scooter, the U.P. Roadways Bus No. U.P.-75-3943 which was being driven rashly and negligently had caused accident with the Scooter due to which his son has expired on the spot. After investigation, the charge-sheet was filed for the offences punishable under Sections 279 and 304A, I.P.C. The prosecution had examined Sahab Singh as P.W.-1, Radhakrishna Srivastava as P.W.-2, Vishram Singh as P.W.-3, Jagarnath Prasad as P.W.-4, Dr. V.K. Gupta as P.W.-5, S.I.M.T. Sri Keshav Singh as P.W.-6, Jhandelal as P.W.-7, Kailash Yadav as P.W.-8 and Constable Jasveer Singh as P.W.-9. Learned Trial Court after appreciating the evidence on record came to the conclusion that offences punishable under Sections 279, 304A and 427, IPC are proved beyond reasonable doubt against the accused and had convicted him by judgment and order dated 24.3.2009.

This judgment of Trial Court was challenged in Criminal Appeal No. 36 of 2009 and learned Appellate Court after re-appreciating the evidence on record, had confirmed the findings of Trial Court and has maintained the conviction and the sentence.

The revisionist had taken the ground that he was not driving the ill-fated bus on the said date and time of the accident. In the F.I.R., the bus number was mentioned clearly. The ill-fated bus belonged to U.P. Transport Corporation, Farrukhabad Depot. The revisionist had the opportunity to adduce the evidence in defence and to show that he was not the driver of the ill-fated bus on the said date and time. Even in the statement u/s 313, Cr.P.C. only this much has been said that at the time of accident he was not caught on spot nor his bus was caught on the spot but the police had taken the bus from the bus stand. In the F.I.R. itself it has been mentioned that the bus had run away after causing the accident. Witness Sahab Singh, P.W.-1, Radhakrishna Srivastava, P.W.-2, Vishram Singh, P.W.-3, have specifically stated in their statements that the bus was being driven by the accused Ramesh Chandra, who was also present in the Court. These witnesses have been cross-examined at length and nothing adverse has come in the statements of the witnesses that the driver of the ill-fated bus was not identified on the spot or that the revisionist was not driving the bus at the time of accident. Both the learned Courts below have considered this aspect at length and there remains no doubt that the revisionist was driving the ill-fated bus rashly and negligently on 3.5.1996 at about 9.30 a.m.

In the accident, the son of the complainant Sanjay @ Lallu Srivastava had expired on the spot and Dr. V.K. Gupta has proved the post-mortem report of the deceased. S.I.M.T. Sri Keshav Singh, P.W.-6 has stated in his statement that he had mechanically examined the aforesaid bus and had found that the steering and foot brake were working properly. Learned Appellate Court has also considered this aspect that in the Corporation buses there remains a duty chart of the drivers and if the revisionist was not driving the ill-fated bus on the said date and time then he could have submitted the certificate from the concerned office but no such evidence has been adduced in defence. The prosecution witnesses have narrated the story in a very natural way and there are no material contradictions in the statements of the witnesses. No enmity with the revisionist has been proved and it is also not disputed that the son of complainant had expired on the spot due to said accident. Both the learned Courts below have considered all aspects of the matter in detail and the findings are based on cogent reasons supported by evidence on record. I do not find any error of law or perversity in the impugned judgment.

In the last, learned Counsel for the revisionist has submitted that the revisionist is facing the trial since 1996 and since now he has also retired from the post of driver, therefore, a lenient view may be taken.

Learned Trial Court has awarded a sentence of three months imprisonment for the offence punishable u/s 279, I.P.C., a sentence of one year imprisonment for the offence punishable u/s 304A, I.P.C. and a sentence of six months imprisonment for the offence punishable u/s 427, I.P.C. The incident took place in the year 1996 and since then the revisionist is facing the trial.

Taking into consideration all the facts and circumstances of the case, the revision is partly allowed and the sentence awarded for the offence punishable u/s 279, I.P.C. is maintained but the sentence awarded for the offence punishable u/s 304A, I.P.C. is modified to four months simple imprisonment and the sentence awarded for the offence punishable u/s 427, I.P.C. is modified to three months imprisonment. All the sentences shall run concurrently and the period already undergone shall be set of.

The revisionist is directed to surrender before the Trial Court within 30 days from today to serve out the sentence, failing which the Court below shall be at liberty to adopt coercive action for the arrest of the revisionist. Office is directed to inform the Court concerned and return back the lower Court record at an early date.