State of Himachal Pradesh vs Ajay Kumar

Surinder Singh, J.—In this appeal, the State has laid challenge to the acquittal of the respondent, hereinafter referred as "the accused", passed by the learned trial Court in Cr.Case No.60-II of 1997, decided on 20.11.2004, for the offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code.

In short, the prosecution story can be stated thus. PW3 Rishi Mahajan is the General Power of Attorney of his wife owner of the alleged offending bus. In the month of March, 1997, the accused was its driver and was driving his bus bearing registration No.HP-40-1644 on the public highway competing with other bus and while over taking a Government Jeep, rashly and negligently hit Rattani Devi, a passer-by who later died and over turned the bus, causing injuries to the bus passengers i.e. Ratto Devi, Kamlesh, Rekha and Punam.

(ii).On having been informed about the accident, police reached the spot and recorded the statement of PW1 Mehar Chand. Rattani Devi, was serious, she was removed to hospital alongwith other injured persons, where they were attended upon by PW6 Dr. B.B. Katoch. He issued Medico Legal Certificates Exts. PW6/A to E. Later, Rattani Devi had died and PW4 Dr. D.P. Swami conducted her post-mortem. The Post-mortem Report is Ext.PW4/A.

(iii) The police had prepared site plan Ext.PW9/A of the place of accident after taking photographs Exts.P1 to P4, thereafter accused was arrested and released on bail. He had produced the documents of vehicle vide memo Ext.PW2/A. PW5 Durga Dass Mechanic mechanically examined the bus in question and issued report Ext.PW5/A.

While denying the charge-sheet, accused pleaded not guilty and claimed trial.

To prove its case, prosecution relied upon the statements of PW1 Mehar Chand, PW2 Lakha Ram an eye witness and PW3 Rishi Mahajan. Other witnesses are PW4 Dr. D.P. Swami, PW5 Durga Dass Mechanic, PW6 Dr. B.B. Katoch and official witnesses PW7 ASI Bhagat Ram, PW8 HC Sita Devi and PW9 Dy.S.P., the then SHO Prem Singh.

The defence of the accused is that though he was employed as driver by Rishi Mahajan, but he had been engaged to drive the bus of "Munish Bus Service" owned by Rishi Mahajan and he never drove the alleged offending vehicle. According to him, he was falsely implicated in this case, however, he did not lead any evidence in defence.

At the end of trial, the accused was acquitted by the learned trial Court, on the ground that the prosecution failed to establish that the accused was the driver of the bus in question and the statement of PW3 Rishi Mahajan is not worth inspiring confidence as his wife has about 20 buses, whereas the drivers and conductors are deputed by the Manager having his office at the Main Bus-Stand. Further that there have been contradictions in the statements of the prosecution witnesses about point on the road, where Rattni Devi deceased was hit.

Shri P.M. Negi, learned Deputy Advocate General vehemently argued that the learned trial Court did not appreciate the evidence of the prosecution witnesses in the right perspective. Insofar as the identification of the accused is concerned, it stands fully established by the statement of PW1 Mehar Chand complainant as also PW3 Rishi Mahajan. Further the accused admitted that he was a driver employed by PW3 Rishi Mahajan and even PW3 aforesaid stated that the accused was the driver of the alleged offending vehicle and he was found present on the spot when the police arrived. He was arrested and he also produced the documents of the vehicle which were taken into possession by the police vide memo Ext.PW2/A. Therefore, there is no scope for doubt that the accused was not driving the bus at the relevant time. He further urged that the prosecution witnesses testified that the accused was driving the bus in question in rash and negligent manner in competition with other buses, which caused the accident, therefore, findings of acquittal recorded by the learned trial Court are perverse.

Ms. Seema Sood, learned counsel for the accused supported the impugned judgment of acquittal and forcefully argued that the evidence with respect to the identity of the accused is discrepant. His presence on the spot does not indicate that he was driving the offending bus at the relevant time. She also referred to the examination-in-chief of the complainant whereby he stated that the accused who was present in the Court during the trial appeared to be same person driving the vehicle. This fact does not establish that in fact he was the same person driving the vehicle.

In order to appreciate the rival contentions of the parties, I proceed to reappraise the evidence on record.

The accident in question had taken place around 11.35 p.m. The information with respect to the accident received by the police and they reached the spot around 12.25 p.m. PW1 Mehar Chand who was a teacher in a Government School was also travelling in the said bus alongwith his family members. His statement Ext.PW1/A was recorded by the police on the spot u/s 154 of the Code of Criminal Procedure therein. He clearly mentioned the name of accused as Ajay Kumar and held him responsible for the rash and negligent driving of the bus causing the accident. This fact was testified by him during the trial. He also stated that the accused was rashly and negligently driving the bus in a high speed and in competition with another bus of "National Bus Service". When it reached near 53 Miles, a bus came from the side of Dharamshala, which was enroute to Ludhiana. Accused took his bus ahead of it and started competition with it. Thus, he was competing with two buses i.e. one coming from the side of Dharamshala and another of "National Bus Service". When the bus reached near Kholi bridge, a Jeep also came from the side of Kangra. It was taken over by the alleged offending vehicle with great difficulty. After crossing it the accused could not control the bus and in that process hit Rattni Devi, who was going on foot on the side of the road and received serious injuries. The bus overturned and in that process, he alongwith his other family members sustained the injuries.

Though in his examination-in-chief, he (PW1) stated that the accused present in the Court appeared to be the same driver, but in the tail end of his cross-examination, he denied that the accused was not the driver of the said bus, rather he confirmed that he knew the accused present in the court by face and was driving the bus on the day when it met with accident. His statement has further been corroborated by PW3 Rishi Mahajan. He stated that on 6.3.1997, the bus in question met with an accident, at that time accused Ajay Kumar was the driver of the bus. Although, in his cross-examination, he admitted that they have many other drivers, but specifically denied that the accused was not driving the vehicle at the relevant time. He also denied the suggestion that the driver who was responsible for the accident was not having the valid driving licence and he was substituted by accused to avoid compensation.

PW2 Lakha Ram stated that he had seen the bus in question from his courtyard being driven in a very high speed and hit the lady walking on the road who later died of the said accident and the bus had over-turned. He also stated when police reached the spot, accused was present. He further testified about production of the documents of the vehicles by the accused alongwith his driving licence vide memo Ext.PW2/A, duly signed by him.

On the critical examination of the aforesaid evidence, there is nothing to doubt that the accused was not driving the bus No.HP-40-1644 on the public highway near Kholi when it met with an accident. The very fact that the accused was driving the bus in competition with another private bus and also overtook a Jeep, which was going ahead of him and in that consequence, he lost his control over the bus, knowing fully well that his bus was carrying the passengers, endangering their lives as also that of the user of the public highway, he hit Smt. Rattni Devi going on foot on the side of the road and bus overturned causing minor injuries to other and fatal to Rattni, who later died in the hospital. The rash and negligent act of driving by the accused is writ large and the findings to the contrary recorded by the learned trial Court are perverse as not borne out from the evidence on record. I also do not find any material contradiction in the prosecution evidence, which goes to the root of the case.

In view of the above discussion, the ingredients of offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code stand fully proved.

Thus, the findings of acquittal of the accused, recorded by the learned trial Court, for the offences under Sections 279, 337 and 304-A of the Indian Penal Code are perverse. Therefore, the acquittal of the accused for the offences aforesaid only is set-aside. Accordingly, the accused is held guilty, thus convicted for the offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code.

The convict be produced on January 3, 2012, for hearing him on the point of sentence. Judgment to continue.