Basant vs State Of Uttarakhand

Sharad Kumar Sharma, J

This revision has been preferred by the revisionist, who is the driver of the vehicle, i.e. the Truck bearing registration number USK 4218. The case of the prosecution before the Court below was that an accident has taken place on 21st March 2006, and as per the version of the complainant Mr. N.K. Bansal, who has lodged the first report, he has submitted that while his relatives who were travelling by a Maruti Car bearing registration number UP13 F 1995, which was moving towards Bulandsahar Bus Adda, it met with an accident with the truck in question as a consequence thereto two persons had met with the sad demise on the spot in the accident, namely, Puneet Kumar Goyal and Islam. As a consequence of the registration of the FIR No. 120/06, which was registered on 21st March 2006, it shows that the revisionist was responsible for the accident as his truck has colluded with the Maruti Car resulting into the death of the two persons and hence in the complaint thus registered on 21st March 2006, he was sought to be prosecuted by the complainant.

On the registration of the First Information Report, an investigation was conducted and the Investigating Officer has submitted a chargesheet which was being chargesheet number 23/06 dated 13th March, 2006, which is shown to have been recorded after examining as many as 15 witnesses of the occurrence and consequently, as per contents of the chargesheet, it was observed that the offence under Section 279 and 304A IPC as against the present applicant was made out. Ultimately, on submission of the chargesheet, the cognizance was taken and Criminal Case No. 1046 of 2011, State v. Basant was registered before the Additional Chief Judicial Magistrate, Rishikesh, District Dehradun under Section 279 and 304A IPC.

Apart from the fact of narration of the circumstances and the manner in which the accident has occurred and its consequences which has been dealt with by the learned trial Court in its judgement, with regard to the occurrence of the accident on 21st March 2006, and the death of the two persons, it has observed that as per the prosecution story apart from the oral examination of PW1, the complainant N.K. Bansal, it is contended that there were other three eyewitnesses of the accident namely, Umesh Kumar, Nathu Ram and Salim.

The argument of the learned counsel for the revisionist is that as from amongst the three eye witnesses only one of the eye witness was produced in support of establishment of the offence of accident i.e. Pawan Kumar, who recorded his statement under Section 161 based on which a CD was prepared by the Investigating Officer and on his statement, the chargesheet was submitted before the Court below.

It is the case of the revisionist that in the statement which was made by PW2, his statement under Section 161 as recorded by the Investigating Officer looses its significance, as soon as the chargesheet is submitted before the Court below, in that eventuality, at the stage when the trial was being conducted, it was necessary that all the eye witnesses who were said to have seen the accident ought to have been produced before the trial Court for their examination. Apart from that fact that the Investigating Officer, Sub Inspector Shishpal Singh PW6 has also appeared in the witness box and has supported the prosecution story pertaining to the occurrence of the accident on 21st March 2006.

The learned Government Advocate submits that though it is admitted on a record that the sole eyewitness which was produced before the Court below i.e PW4 is later on is said to have become hostile; but in support of his contention he submits that the act of PW2 becoming a hostile, will not have any relevance for the reason being that PW6 who had appeared in the witness box and has recorded his statement, pertaining to the mode of conducting of his investigation and the mode in which the accident had occurred itself was sufficient for establishment of the offence under Section 279 and 304A of IPC.

In response to it, the learned counsel for the revisionist has drawn the attention of this Court to the statement of PW 4, who was the technical expert, and according to his report about the accident as submitted before the Court below he had submitted that the accident did occurred and the reason for the accident which has been opined by the expert was that the accident has chanced on account of the failure of staring of the truck and in all probability the truck has colluded against the Maruti Car and also because it seems that the break of the truck has also failed resulting to the accident.

The learned counsel for the revisionist submits that in order to substantiate the charges which was levelled against the revisionist by the Investigating Officer it was incumbent on the prosecution to have produce other eyewitness also in order to establish the negligence on the part of the present revisionist so as to make him liable for the commission of an offence under Section 279 of the IPC or for establishing an offence under Section 304A. This Court admitted the revision and summoned the lower court records and after seeing the lower court records and considering the site plan as well as other documents on record, it could be safely deduced that as per the evidence which has been adduced before the Court below pertaining to the manner in which the accident has occurred which could very well be seen by the photographs which were produced before the Court below and are on record before this Court, which is formed as part of the evidence it showed that the truck in question was in fact moving on the extreme left hand side of road and rather it was the Maruti Car which was coming from the opposite direction has colluded with it.

The said inference could be drawn from the paper number 20C/1, 20C/2, 20C/3 and 20C/4. In fact, on appraisal if all photographs as well as other documents on record and in particular the statement of PW 2, who has later on turned as hostile. Also considering the fact that claimant has also raised a claim for the grant of compensation before the learned Motor Accident Claim Tribunal, Bulandsahar and the learned Motor Accident Claim Tribunal, Bulandsahar has recorded a finding while deciding issue Nos. 1 and 6, wherein it had recorded the fact that in fact the Maruti Car was trying to overtake another vehicle and due to which the accident has occurred. It has also recorded a finding to the effect that as far as the Truck in question is concerned, it was coming from the left hand side at a very slow speed and the reason for accident was negligence of the driver of the Maruti Car.

" 17. विद्वान अधिवक्ता विपक्षी संख्या 1 वाहन स्वामी की तरफ से पत्रावली पर उपलब्ध कराये गये फोटो 33ग, 34ग व निगेटिव 36ग की ओर मेरा ध्यान आकृर्षित कराते हुए, दुर्घटना के बाद मौके पर फोटो खींची गयी थी जिसमें पुनीत कुमार गोयल की मारूती कार और विपक्षी की ट्रक मय पुलिस कर्मियों के दिखाई दे रही है और दुर्घटना सड़क के बीच से मारूती कार के दहिनी तरफ दिखाई दे रही है जिससे स्पष्ट है कि दुर्घटना पुनीत कुमार गोयल मारूती कार चालक की उपेक्षा के कारण घटित हुई"

The learned Motor Accident Claim Tribunal, Bulandsahar has recorded a finding in its para 17 to the effect that on the perusal of the photographs paper Nos. 33 (ga) and 34 (ga) and its negative as paper No.36 (ga), which was filed before learned Motor Accident Claim Tribunal, Bulandsahar a finding has been recorded that the truck was moving on the left hand side and it was on account of the negligence of the driver of the Maruti Car, which was coming from the opposite direction it had colluded with the truck.

The relevant finding of para 17 of the said judgement is quoted hereunder:-

"17. विद्वान अधिवक्ता विपक्षी संख्या 1 वाहन स्वामी की तरफ से पत्रावली पर उपलब्ध कराये गये फोटो 33ग, 34ग व नगेटिव 36ग की ओर मेरा ध्यान आकर्षित कराते हुए, दुर्घटना के बाद मौके पर फोटो खींची गयी थी जिसमें पुनीत कुमार गोयल की मारूती कार और विपक्षी की ट्रक मय पुलिस कर्मियों के दिखाई दे रही है और दुर्घटना सड़क के बीच से मारूती कार के दहिनी तरफ दिखाई दे रही है जिससे स्पष्ट है कि दुर्घटना पुनीत कुमार गोयल मारूती कार चालक की उपेक्षा के कारण घटित हुई"

Even the learned Motor Accident Claim Tribunal, Bulandsahar on considering other supporting evidence had also recorded a finding that as far as the truck which was driven by the present revisionist is concerned, it was holding all the valid documents and the Truck was being driven by the revisionist, who was holding a valid licence at the time when the accident was occurred and consequently, after holding that the driver of the Maruti Car was negligent in driving has partially allowed the claim petition by the judgement dated 22nd September 2009.

The learned counsel for the revisionist has submitted that in order to make the revisionist responsible to hold him contributing in the accident the exclusive report, which has been given by the technical expert, who has appeared in the witness box as PW 4 to support his report cannot be taken as to be an isolated document to hold the revisionist responsibe for the commission of an offence under Section 279 to be read with Section 304A IPC.

Even the judgement of the learned Motor Accident Claim Tribunal, Rishikesh too had taken into consideration the fact that as per the pleadings raised by the prosecution, it shows that the accident has occurred on account of the negligence of the driver of the Maruti Car. In the absence of there being any other evidence to support the fact that the revisionist was responsible for the commission of an offence under Section 279 and 304A IPC, this Court too is of the view that the present revision deserves to be allowed and as a consequence thereto the same is allowed. The impugned order dated 9th January 2013, as rendered by the learned Additional Chief Judicial Magistrate, Rishikesh in Criminal Case No. 1046 of 2011, State v. Basant, as well as the judgement dated 7th February, 2015, as rendered by the 2nd Additional and Sessions Judge, Rishikesh, District Dehradun in Criminal Appeal No. 8 of 2013, Basant v. State are quashed and the revisionist is acquitted from the commission of an offence under Section 279 and 304A IPC and charges connected thereto.

However, there would be no order as to cost.