Mohan Lal v. State of Himachal Pradesh

Mr. Peeyush Verma, Advocate. For the Respondent : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, J(Oral) . This revision has been directed against judgment dated

16.3.2006 passed by learned Sessions Judge, Shimla in Criminal Appeal No.30-S/10 of 2005, affirming judgment dated 11/14.7.2005 passed by learned Addl. Chief Judicial Magistrate, Court No.1, Shimla in Case No.44/1 of 2004 convicting and sentencing the petitioner for simple imprisonment for two months and fine to the tune of ‘500/- for offence punishable under Section 279 IPC, in default of payment of fine, the petitioner shall further undergo simple imprisonment for a period of 15 days. No separate sentence has been imposed for offence punishable under Section 337 IPC.

2. The prosecution case in brief is that on 13.7.2004 complainant PW-2 Sunita Sharma was returning to her house in a bus __________________________ Whether the reporters of the local papers may be allowed to see the Judgment?Yes and she got down from the bus at Talland and was about to proceed towards Khalini. In the meantime, bus No.HP-30-2277 came from Chotta Shimla side which was on the wrong side and hit PW-2, who fell down and sustained head injuries. The petitioner was driving bus No.HP-30-2277. PW-1 Ratish Sharma, Advocate took PW-2 to IGMC in his vehicle. The case was registered.

3. On completion of investigation challan was submitted against the petitioner for offences punishable under Sections 279, 337 IPC and Section 187 of the Motor Vehicles Act. The accusation was put to petitioner under Sections 279, 337 IPC and Section 187 of the Motor Vehicles Act. The petitioner pleaded not guilty and claimed trial. The prosecution has examined seven witnesses and has produced some documents. The statement of petitioner was recorded under Section 313 Cr.P.C. The petitioner denied the prosecution case. He led no evidence in defence.

4. On conclusion of trial, the learned Addl. Chief Judicial Magistrate on 11/14.7.2005 convicted and sentenced the petitioner as noticed above. The learned Sessions Judge dismissed the appeal of the petitioner on 16.3.2006, hence present revision.

5. I have heard Mr. Peeyush Verma, learned counsel for the petitioner and Mr. J.S. Rana, Assistant Advocate General and have also gone through the record. It has been submitted by learned counsel the petitioner two Courts below have misconstrued and misinterpreted the evidence on record, more particularly the statement of complainant PW-2 Sunita Sharma. The Courts below have wrongly relied site plan Ex.PW-5/A in convicting and sentencing the petitioner. It has been submitted that the prosecution has miserably failed to prove rash and negligent driving on the part of the petitioner. He has prayed for acquittal of petitioner, in the alternative for taking a lenient view in the matter. The learned Assistant Advocate General has supported the impugned judgment and has submitted that the two Courts below have recorded concurrent finding of fact on the basis of material on record and evidence cannot be re-appreciated in revision.

6. The controversy involved in the revision is very limited. PW-2 Sunita Sharma has stated that on 13.7.2004 at about 10/10.15 A.M. she got down from the bus at Talland for taking another bus to New Shimla. She was crossing the road, in the meantime a private bus in high speed came from Chhota Shimla side and hit her. She fell down and sustained injuries on her head. She tied her head, she was taken to IGMC by an advocate. The police recorded her statement Ex.PW-2/A. The bus involved in the accident was bearing No. HP-30-2277 and accident took place due to the driving of the driver of the bus namely Mohan Lal petitioner. She got twelve stitches on her head. It has been submitted on behalf of the petitioner that PW-2 in her examination-in-chief has stated that she had crossed the road. In cross-examination it has come that the doors of the bus were on the left side. She was crossing the road. A positive suggestion has been given to her in cross-examination that when she was about to cross the road at that time the vehicle came from the opposite side, she suddenly returned and in confusion fell down. This suggestion has been denied by the complainant. It means that PW-2 had not crossed the road but accident took place when injured was very much on the road.

7. PW-5 S.I. Prem Chand has stated that he prepared site plan Ex.PW-5/A at the instance of injured. PW-7 Dr. Bushan Lal has proved MLC Ex.PW-7/A of PW-2. In his statement under Section 313 Cr.P.C. the petitioner has not disputed the correctness of site plan Ex.PW-5/A or MLC Ex.PW-7/A. He however, has stated that his bus did not hit the complainant.

8. The perusal of site plan Ex.PW-5/A indicates that the complainant at point-A was to cross the road from South to North and at that place accident took place. The bus No.HP-30-2277 came from West side and it was proceeding towards East side. The accident took place at point (cid:145)A(cid:146) shown in site plan Ex.PW-5/A. This gets support from the cross-examination of complainant when a positive suggestion has been given to her that she fell down when she was crossing the road. No case was put to her that she fell down at the far end of the road when she actually crossed the road. In other words, the petitioner has not disputed the prosecution case that complainant sustained the injuries at point-A shown in site plan Ex.PW-5/A.

9. At point-A in site plan Ex.PW-5/A the bus which was being driven by petitioner was totally on wrong side. The complainant has sustained the injuries and she is the best person to state how the accident had taken place. The suggestion put by the petitioner to the complainant in her cross-examination that she fell down of her own when she was returning on seeing the bus coming from the opposite side does not emerge from the evidence on record. This defence of the petitioner is false in as much as in his statement under Section 313 Cr.P.C. he has not stated that complainant sustained injuries due to fall when she returned while crossing the road on seeing the bus coming from opposite side.

10. The complainant has sustained injuries which have been proved by MLC Ex.PW-7/A. The two Courts below after due appreciation of material on record have recorded a finding of fact that accident took place due to rash and negligent driving of the petitioner, as a result of which complainant has sustained injuries. In criminal revision the re-appreciation of the evidence is not possible unless view taken by Courts below is perverse. On behalf of the petitioner, it has not been established that the view taken by the Courts below is perverse or it does not emerge from the evidence on record. No case for interference is made out in the revision.

11. The learned counsel for the petitioner has submitted that benefit of probation may be extended to the petitioner keeping in view of his age who is youngman and his family is depended upon him. The Supreme Court has held that benefit of probation cannot be extended in accident case under Sections 304 A IPC in Dalbir Singh vs. State of Haryana (2000) 5 SCC 82. On the same principle benefit of probation cannot be extended in the facts and circumstances of the present case. There is no merit in the revision, resultantly the revision fails and is accordingly dismissed. Bail bonds of the petitioner are cancelled. He is directed to surrender immediately. October 15, 2011 (sks) (Kuldip Singh), Judge.