Subhash Chand vs State Of Himachal Pradesh

Sandeep Sharma, J. ^(Oral)

Instant criminal revision petition, lays challenge to judgment dated 31.3.2017, passed by the learned Additional Sessions Judge, Chamba, District Chamba, Himachal Pradesh in Criminal Appeal No.84/2014 affirming the judgment of conviction and order of sentence dated 31.1.2014/19.2.2014, passed by the learned Chief Judicial Magistrate Chamba, District Chamba, Himachal Pradesh in Case No.480-I/10/04 T, whereby the learned trial Court while holding the petitioner-accused Subhash Chand, who has now expired, guilty of having committed offence convicted and sentenced him as under:

Precisely, the facts of the case, as emerge from the record are that on 2.12.2003 at about 1:00pm, petitioner accused was driving HRTC Bus bearing registration No. HP484501, on a public highway at a place called Kui-Nulla, rashly and negligently so as to endanger human life and safety of others, as a result of which, it rolled down about 250-300 meters into Ravi River, resulting in simple/grievous injuries and deaths of persons as detailed in the judgment of conviction and order of sentence laid challenge in the instant proceedings. Factum with regard to afore incident, came to be reported to the police through a complaint made by PW1 Smt. Usha Devi, who was working as teacher in Government High School Gehra situate near the spot of incident, stating therein to the police that she saw a bus falling into the Ravi River, whereupon, Sh. Roop Lal Laboratory Assistant of the School and other persons of the area ran towards Nulla, towards the site of incident. She disclosed to the police that injured were taken to the District Hospital at Chamba.

On receipt of afore information, SHO Inspector Rajesh Chhabra along with other police officials went to the spot and reached on the spot and recorded the statement of complainant under Section 154 CrPC Ext.PW1/A on the basis of which, FIR Ext.PW21/B came to be registered against the accused. Police after having completed necessary codal formalities and completed investigation, presented challan in the competent court of law, which being satisfied that prima-facie case exists against the accused, framed notice of accusation against him under Sections 279, 337, 338 and 304-A of IPC, to which he pleaded not guilty and claimed trial.

Prosecution with a view to prove its case examined as many as 31 witnesses. Accused in his statement recorded under Section 313 CrPC, denied the case of the prosecution and stated that accident occurred due to mechanical defect and bad condition of the road. He stated in his statement that ill fated bus was a 52 seater vehicle and road was not passed for carrying 52 passengers due to which retaining wall of the road had collapsed. Accused also examined five witnesses in his defence.

Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 31.1.2014, held the petitioner-accused guilty of having committed offences punishable under Sections 279, 337, 338 and 304-A of IPC and accordingly, convicted and sentenced him as per the description given herein above.

Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused preferred an appeal before the learned first appellate Court, but the same was dismissed vide judgment dated 31.3.2017. In the aforesaid background, accused, who is no more, approached this Court in the instant proceedings, praying therein to set-aside the judgment of conviction and order of sentence recorded by the court below.

It is pertinent to take note of the fact that during the pendency of the present petition, accused Subhash Chand had expired and as such, his LRs filed appropriate application before this Court, seeking therein substitution, which prayer of them was duly accepted and as of today, present petition is being contested by LRs of deceased Subhash Chand.

Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr.Vijay Bir Singh, Advocate, is that both the courts below have failed to appreciate the evidence in their right perspective, as a result of which, findings to the detriment of the petitioner-accused have come to the fore. Mr. Vijay Bir Singh, further submitted that majority of prosecution witnesses have turned hostile, but yet both the courts below while placing heavy reliance upon statement made by PW3 Tarsem Singh, who gave mechanical report, proceeded to hold the accused guilty of his having committed offences under Sections 279, 337, 338 and 304-A of IPC. He submitted that courts below failed to take note of Magisterial Enquiry Report Ext.DW3/B, perusal whereof reveals that accident occurred on account of mechanical defect as well as deteriorated road conditions. He further submitted that it has specifically come in the Magisterial Enquiry Report that road, where petitioner-accused was compelled to drive, was very old and not fit to be plied. Magisterial Enquiry Report further reveals that 2-3 days prior to the accident, conductor of the bus had lodged a complaint with concerned quarters with regard to bad condition of the bus, but yet accused was compelled to drive the vehicle that too on very bad road.

To the contrary, Mr. Vishal Panwar, learned Additional Advocate General, while supporting the impugned judgment of conviction and order of sentence passed by the both the courts below vehemently argued that present petition is not maintainable for the reason that there is no perversity, if any, in the afore judgments. He submitted that otherwise also, while exercising revisionary jurisdiction, this Court has very limited scope to intervene in the concurrent finding of fact and law returned by the courts below. He submitted that though some of the witnesses turned hostile, but number of prosecution witnesses, who were either occupants of the bus or were present near the site, have categorically stated that accident occurred due to rash and negligent driving of the accused and as such, no illegality or infirmity can be said to have been committed by the courts below while holding the petitioner-accused guilty of having committed offences punishable Sections 279, 337, 338 and 304-A of IPC. While referring to statement made by PW3 Tarsem Singh and Magisterial Enquiry Report Ext.PW3/B, Mr. Panwar submitted that person competent to mechanically examine the vehicle has categorically opined that vehicle was mechanically fit at the time of accident and as such, it is wrong to claim that accident occurred on account of mechanical defect in the ill fated bus. Mr. Panwar, further argued that Magisterial Enquiry Report given by the SDM never came to be proved on record in accordance with law because author of the same i.e. SDM, was never examined by the accused.

I have heard learned counsel representing the parties and gone through the record carefully.

True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on record, but in the present case, where accused has been convicted and sentenced under Sections 279, 337, 338 and 304-A of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record, undertook an exercise to meticulously examine the evidence available on record to reach a fair and just decision in the case.

As far as scope of power of this Court, while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-

In the instant case, this Court solely with a view to ascertain the genuineness and correctness of the submissions having been made by the learned counsel representing the petitioner as well as to find out “whether there is any illegality or infirmity in the impugned judgments passed by the Court below”, undertook an exercise to peruse the evidence led on record by the prosecution, perusal whereof, certainly persuades this Court to agree with the submissions having been made by the learned counsel for the petitioner/ accused that learned courts below have not appreciated the evidence in its right perspective, as a result of which, erroneous findings to the detriment of the petitioner-accused have come on record.

Through prosecution with a view to prove its case examined as many as 31 witnesses, but statements made by all of them may not be relevant for ascertaining the correctness of judgments laid challenge in the instant proceedings, rather statements of PW8 to PW14, PW17, PW19, PW20 and PW27, who were travelling in the ill fated bus being driven by the accused may be relevant. PW1 Smt. Usha Devi and other eye witnesses i.e. PW8 S. Munshi Ram, PW11 Smt. Reeta Devi, PW17 Sh. Dhanpati and PW27 Sh. Dina Nath, turned hostile, but yet version put forth by them was not discarded by the courts below, rather taking note of certain admissions made by them in their cross-examination, both the courts below took help and aid of the same to hold the accused guilty of having committed offences punishable under Sections 279, 337, 338 and 304-A of IPC.

PW1 Usha Devi, who was working as Teacher in Government High School Gehra, saw the bus falling into Ravi River. Since neither afore witness was present in the bus nor she had an occasion to see the bus moving on the road, rather she came out of the school after having heard cracking sound from the bus, no much reliance could have been placed upon her version with regard to rash and negligent act, if any, of the petitioner. In her cross-examination, she denied that accident occurred due to rash and negligent driving of the accused. In her cross-examination by learned defence counsel, she admitted the plea of the accused that at the time of accident, accused was driving the bus slowly and carefully. She admitted that there was a ditch on the spot and breaking sound came in the bus before the same fell into the River.

PW8 Sh. Munshi, PW11 Reeta Devi, PW17 Sh. Dhanpati and PW27 Sh. Dina Nath, who were also travelling in the ill fated bus also nowhere stated that accident occurred due to rash and negligent driving of the accused, rather they all admitted that accident happened on account of mechanical defect and sliding of danga on the roadside. These witnesses stated that accused was driving the bus at a normal speed. PW9 Smt. Nimo Devi, PW10 Kalyan Singh, PW1 Sh. Mahesh, PW13 Smt. Simlo, PW14 Sh. Bajeer Chand, PW19 Sh. Om Parkash and PW20 Smt. Babli, who were also travelling in the ill fated bus and sustained injuries in the accident stated that accident occurred due to rash and negligent driving of the petitioner. PW9 Smt. Nimo Devi, PW10 Kalyan Singh, PW11 Smt. Reeta Devi, PW12 Sh. Mahesh, PW13 Smt. Simlo, PW14 Sh. Bajeer Chand, PW19 Sh. Om Parkash and P17 Smt. Deena Nath deposed that bus was overloaded and about 60-70 persons were travelling in the bus. While admitting suggestion put to them, that road was narrow and in bad condition, they feigned ignorance as to whether the accident occurred due to the sliding of the retaining wall on the one side of the road as alleged by the accused.

Statement of PW3 Tarsem Singh, who conducted mechanical examination of the bus in question, weighed heavily with the courts below to hold the accused guilty of having committed offences punishable under Sections 279, 337, 338 and 304-A of IPC. Afore witness, who was working as driver-cum-mechanic at Chamba in the year 2003, deposed that he conducted the mechanical examination of the ill fated bus on the spot at Kui Nulla near Ravi River at Gehra and issued mechanical report Ext.PW3/A, which bears his signatures. Careful perusal of afore mechanical report reveals that during mechanical inspection, steering system, brakes, fuel transmission, suspension, chassis and other components were checked. Though vehicle in question was found to have fallen about 300 feet down the road, but yet steering system, front axle along with pull ad push rod and ends were found to be in proper and intact condition. In his cross-examination, this witness admitted that parts of the aforesaid bus got broken while striking to the stones while falling down the road into gorge. He also admitted that he cannot tell as to which part of the bus got broken prior to the accident. He also could not tell as to how much old the bus was and how much kilometers, it had travelled prior to the accident. He admitted that he has not mentioned in his report about condition of the road on the spot. While putting aforesaid suggestions, accused successfully attempted to prove that ill fated vehicle was much old one having mechanical defects. None of the prosecution witnesses stated something specific with regard to rash and negligent driving of the petitioner rather they all stated that bus at the relevant time, was being driven in high speed, which may not be sufficient to constitute offence Section 279 of IPC.

In nutshell, case of the petitioner-accused is that no evidence, worth credence, ever came to be led on record to prove rash and negligent driving, if any, at the behest of the accused and if it is so, learned Courts below could not have sentenced him under Sections 279, and 337 of IPC. At this stage, it would be profitable to reproduce Section 279 of IPC herein below:-

Careful perusal of aforesaid provision of law reveals that to invoke Section 279 IPC, prosecution is under obligation to prove that offending vehicle was being driven by the accused in rash and negligent manner and due to his negligent act, injury was caused to passengers. Since factum with regard to simple/grievous injuries as well as deaths of the occupants of the ill fated bus, is not in dispute, this Court need not to go into aforesaid aspect of the matter. However, having taken note of statements made by material prosecution witnesses, as discussed hereinabove, this Court is unable to agree with learned Additional Advocate General that at the time of the accident, offending vehicle was being driven rashly and negligently by the accused.

As per Section 279 of IPC, whoever drives any vehicle on a public way in rash and negligent manner so as to endanger human life shall be liable to be punished with imprisonment of either description for terms which may extend to six months, or with fine. ‘Negligence’ is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

‘Speed’ is not the criteria to ascertain the rash and negligent driving, rather it is the manner, in which offending vehicle was driven, which determines rashness and negligence. At this stage, learned counsel for the petitioner placed reliance upon the judgment passed by the Co-ordinate Bench of this Court in case State of H.P and ors versus Parmjit Singh, latest HLJ 2012(HP) 297 to substantiate his plea that speed is not the only criteria to prove the rash and negligent driving. The relevant para Nos.14 and 15 of the judgment is reproduced as under:-

It is well settled that a person cannot be held criminally accountable for his rashness and negligence merely because evil consequences flow from his act, rather rashness must be such as to endanger human life or personal safety of others. Similarly, for criminal liability, the rashness or negligence must show a disregard for human life or personal safety of others. Question whether an act is criminally rash or negligent is a question of fact depending upon the circumstances of particular case and as such, needs to be elucidated carefully with certain degree of precision, but in the instant case, prosecution was unable to prove beyond reasonable doubt negligence, if any, on the part of the petitioner-accused. In this regard, reliance is placed upon the judgment passed by the Hon’ble Apex Court in Braham Dass versus State of H.P. (2009) 7 Supreme Court Cases 353. The relevant para No. 6 and 8 are reproduced herein below:-

The Hon’ble Apex Court in case titled “State of Karnataka v. Satish,”1998 (8) SCC 493. The relevant paras of which are being reproduced herein below:-

At this stage, this Court also cannot lose sight of the stern observations made by the Hon’ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182, wherein it has been observed as follows:-

There cannot be any quarrel, whatsoever, with regard to the observations made by the Hon’ble Apex Court with regard to the careless/reckless driving of the drivers and the fact that drivers driving under the influence of alcohol deserve to be punished but in the present case careful perusal of evidence adduced on record by the prosecution, nowhere suggests that the prosecution was able to prove beyond reasonable doubt that vehicle was being driven by the petitioner-accused in rash and negligent manner.

Interestingly, in the case at hand, accused relied upon Magisterial Enquiry Report Ext.DW3/B, but since he failed to examine the SDM Chamba, who conducted the afore enquiry, same was not taken into consideration by the courts below while ascertaining guilt, if any, of the accused, however, this court is of the view that once factum with regard to constitution of Magisterial Enquiry Report was not in dispute, rather majority of persons to the lis appeared before the Magisterial Enquiry conducted by the SDM coupled with the fact that afore document was exhibited, same could not have been ignored by the courts below, rather should have been given due weightage before recording judgment of conviction and order of sentence recorded by the courts below. Magisterial Enquiry Report clearly absolves the petitioner accused of criminal liability. As per report, accident occurred on account of 70% mechanical defect and 30% on account of poor/bad road conditions.

Though at this stage, learned Additional Advocate General attempted to argue that in mechanical report, no part of the bus was found to be in damaged condition, meaning thereby, there was no mechanical defect, however this Court is not persuaded to agree with Mr. Panwar, for the reason that bare perusal of mechanical report, only mentions that during mechanical inspection, steering system, brakes, fuel transmission, suspension, chassis and other components were checked, but there is no specific opinion with regard to perfect condition of aforesaid tools. Once it has come in the Magisterial Enquiry Report that accident to the extent of 70% happened on account of mechanical defect, statements made by PW9, PW10, PW11, PW12, PW13, PW14 and PW17 become more significant because all these witnesses have categorically stated that road condition was very bad. If the aforesaid statements made by afore witnesses are read juxtaposing statement of PW3 Tarsem Singh, wherein he categorically admitted that though there was no mechanical defect, however vehicle was found to be in 4th gear and as such accident took place due to rash and negligent driving of the accused. Once majority of PWs have stated that road was in bad condition, there was no occasion, if any, for the petitioner to drive the vehicle in 4^th gear, meaning thereby, on account of accident, gear of the ill-fated bus must have been shifted and some of the witnesses have also heard crack noise, which means that damage was caused to the various parts of the vehicle on account of bad road conditions.

At the cost of repetition, it is once again observed that none of the prosecution witnesses have stated something specific with regard to rash and negligent driving of the petitioner, rather majority of them stated that ill fated vehicle at the time of accident was being driven in slow speed, which is not sufficient to constitute the offence under Section 279 of IPC.

Leaving everything aside, this Court has no hesitation to conclude that both the courts below have fallen in grave error in as much as not taking into consideration Magisterial Enquiry Report that too on the ground that SDM Chamba, who had authored the afore report, was not examined by the accused. Once aforesaid Magisterial Enquiry Report was exhibited as Ext.DW3/B, same could not have been ignored, rather ought to have been read in evidence. If afore document is read in evidence, it clearly reveals that accident did not take place on account of rash and negligent driving of the petitioner, rather on account of mechanical defect which crept on the spot due to bad road conditions as well as persisting mechanical defect in the old bus.

At this stage, it would be apt to reproduce relevant extract of Magisterial Enquiry Report, which reads as under:

Close scrutiny of aforesaid report clearly reveals that SDM, Chamba, after having examined all the relevant witnesses as well as officials of the department gave his report specifically absolving the petitioner accused of his criminal liability. In his report, it has specifically come that though road in question was not in good condition, but yet petitioner was compelled to drive the vehicle. No doubt, in the alleged incident, many persons have lost their lives, but once there is no cogent and convincing evidence to connect the accused with the commission of the alleged offences punishable under Sections 279, 337, 338 and 304-A of IPC, he should not have been convicted under the aforesaid provisions of law.

Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court has no hesitation to conclude that courts below have failed to appreciate the evidence in its right perspective and as such, judgment dated 31.3.2017, passed by the learned Additional Sessions Judge, Chamba, District Chamba, Himachal Pradesh in Criminal Appeal No.84/2014 affirming the judgment of conviction and order of sentence dated 31.1.2014/19.2.2014, passed by the learned Chief Judicial Magistrate Chamba, District Chamba, Himachal Pradesh in Case No.480-I/10/04 T, is not sustainable in the eye of law and accordingly, same are quashed and set aside and the petitioner-accused, who is otherwise dead, is acquitted of the notice of accusation issued under Sections 279, 337, 338 and 304-A of IPC against him. Present petition is disposed of along with pending applications if any