Crl. Rev. No. 631/2001 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Rev. No. 631/2001 Judgment reserved on: 20.10.2008 % Judgment delivered on: 23.03.2009 Sh. Bhairav Singh ...... Petitioner Through: Mr. S.P. Pandey, Advocate versus State ..... Respondent Through: Mr. Pawan Sharma, APP CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes KAILASH GAMBHIR, J. * 1. By way of this petition filed under section 397 read with Sections 401 and 482 of the CrPC the revisionist seeks revision of Crl. Rev. No. 631/2001 Page 2 of 27 the impugned order dated 2/11/2001 passed by the Ld. Addl. Sessions Judge, whereby the appeal of the present revisionist was dismissed and the judgment/order dated 27/2/2001 passed by Ld. Trial court convicting the petitioner for committing offence under Section 279/304-A IPC and sentencing him to undergo 2 years R.I. & to pay fine of Rs.5000/- was upheld. 2. The brief facts of the case relevant for deciding the present petition are that on 1/10/1991 at about 12:30 pm, the deceased Sh. Sanjay along with his friend Vimal Kaushal, PW1 were going on the motor cycle bearing registration no. DL 3SC 496 to their college from Gole Market to know about their result. While passing through Connaught Place when they reached in front of Super Bazaar on the outer circle, a DTC bus bearing registration no. DEP 9486 came from behind at a very fast speed and struck against the said motor cycle from behind, due to which the motor cyclist, Vimal Kaushal and the pillion rider Sanjay fell down on the road. While Vimal Kaushal escaped with minor injuries, the pelvis of the pillion rider Sanjay was fractured in the said accident, as a result of which he succumbed to his injuries in the hospital. As per the prosecution the revisionist was the driver of the DTC bus and he was driving the bus Crl. Rev. No. 631/2001 Page 3 of 27 at a fast speed and also in a rash and negligent manner and after the accident he fled away from the site of the accident. Upon receiving information about the said accident, DD No. 8-A was recorded at the Connaught Place Police Station and S.I. Ajit Singh, PW7 was entrusted the matter for enquiry. When S.I. Ajit Singh reached the accident site, he found motor cycle bearing registration no. DL 4 SC 4196 lying there and he came to know that the injured had been removed to LNJP Hospital. He then went to the hospital and there he found the injured Sanjay but he was unfit for giving statement. Thereafter, he met Vimal Kaushal, who gave his statement, Ex. PW1/A, wherein he alleged that the accident took place due to rash and negligent driving of the bus being driven by Sh. Bhairav Singh, Revisionist in the instant case. Upon statement of Vimal Kaushal, the police registered a case under Section 279/337 IPC on 1/10/1991 at 2:00pm. Initially the deceased Sanjay was taken to LNJP hospital and from there he was shifted to Batra Hospital, where he died on 25/10/1991, whereafter, the case was converted from one under Section 279/337 IPC to Section 304-A IPC. During investigation the motor cycle and the bus involved in the accident were seized by the police and were mechanically Crl. Rev. No. 631/2001 Page 4 of 27 examined and Sh. Bhairav Singh, the petitioner herein was arrested on 28/10/1991. 3. Mr. S.P. Pandey counsel for the petitioner assailing the impugned order contended that the impugned order is against the evidence on record and the settled law and is liable to be set aside. Strengthening his argument counsel for the petitioner submitted that there is no connection between the alleged commission of offence and the evidence of the alleged eye witness and the entire evidence on record is based on hearsay. The counsel urged that the Ld. ASJ erred in not giving due weightage to the testimony of the conductor Babu Ram who deposed as DW1 and also that of ATI Ram Prasad who deposed as DW 5, wherein they stated that the offending vehicle started from Mayur Vihar Depot after 12:15 PM and there are 17 stops in between the Depot and Plaza Cinema and that the said offending vehicle must have taken at least 1 hour to reach the accident spot. Mr. Pandey, counsel for the petitioner thus contended that it is highly improbable that the bus could reach at the place of the occurrence just within 15 minutes after having crossed a long distance from Mayur Vihar Depot and that too after stopping at 17 bus stops. The counsel also Crl. Rev. No. 631/2001 Page 5 of 27 contended that the learned appellate court erred in not appreciating that In the M.L.C. originally the bus number was recorded as 9786, which was overwritten and changed to 9486; this itself casts enough suspicion on the case set up by the prosecution. The counsel also urged that the testimony of Mr. Vimal Kaushal PW1 was demolished during cross examination, therefore, same cannot be relied upon. Elaborating his arguments, the counsel further maintained that as per the deposition of the I.O PW 7, he appeared on the accident spot at 1.15 P.M. and found no injured person at the accident site, but as per the statement of PW1 Vimal Kaushal the accident took place at 12:30 pm and he remained at the accident spot for about 20 minutes till he and the deceased were transferred to LNJP Hospital. Counsel for the petitioner thus submitted that the theory of the prosecution is based merely on “EITHER” or “OR“ and therefore, merely on presumptions, the petitioner cannot be held liable for the commission of the said offence. The counsel further contended that merely because the bus was being driven at high speed does not mean that the accused was rash and negligent. The counsel also urged that as per the testimony of PW-2 Dr. Jain, the deceased Sanjay was alive and Crl. Rev. No. 631/2001 Page 6 of 27 talking at the time when he was brought to the hospital, therefore, he did not die due to the accident and thus, there is no nexus between the death of the deceased and the accident, thus, accused cannot be held liable for offence under Section 304-A IPC. The counsel further submitted that the I.O. started the investigation without sending rukka for registration of FIR thus, the entire investigation was conducted mindlessly and in ignorance of the procedural formalities. The counsel further contended that refusal of the petitioner to join TIP cannot go against him when the PW1, who was the only public witness and also the victim himself stated that he could not identify the accused person as the bus after hitting the motorcycle did not stop and continued moving. The counsel further submitted that the appellate court erred in basing the entire order in appeal on the testimony of PW1, whose testimony cannot be relied upon as the same was demolished in the cross-examination. Counsel for the petitioner also submitted that the entire conduct of the PW-1 Mr. Vimal Kaushal did not inspire confidence as his conduct remained totally unnatural and unusual. He did not meet his so called friend, the deceased Sanjay, after the occurrence of the accident. He also did not attend his Crl. Rev. No. 631/2001 Page 7 of 27 Teharavi or Uthala ceremony. He did not note down the number of the bus on any paper. He got himself treated privately from some Dawakhana near his house. Can a person who claimed himself to be a friend of the deceased for the past five years from the date of the accident would behave in the above fashion, the counsel contended. Counsel thus submitted that no weightage could be given to the deposition of such a witness who was not truthful. Counsel for the petitioner also submitted that no damage to the alleged offending bus was found after mechanical inspection of the said bus, which is another circumstance to show that the said bus being driven by the petitioner was not involved in the accident. Counsel for the petitioner further submitted that the only independent eye witness of the accident was one Mr. Praveen Dua who was not produced by the prosecution and therefore, adverse inference was required to be drawn against the prosecution for withholding the said material witness. Counsel for the petitioner also justified refusal on the part of the petitioner to join the TIP proceedings as PW-1 Vimal Kaushal himself told the police that he did not see the driver of the offending vehicle. Counsel for the petitioner also submitted that the accident had Crl. Rev. No. 631/2001 Page 8 of 27 occurred during the day time and as per his own deposition of PW-7 in cross-examination, the bazaar on that day was open and therefore, there was lot of hustle and bustle on the road. The contention of the counsel for the petitioner is that when there was so much activity at the place of occurrence then why no efforts were made by the prosecution to produce an independent witnesses in whose presence the accident might have occurred. As far as the identification of the petitioner is concerned, no independent witness was produced by the prosecution to point out that the petitioner was driving the offending vehicle at the time of the accident, counsel contended. Counsel for the petitioner thus urged that the entire investigation is tainted, unreliable and unrealistic and therefore, the benefit of doubt should go to the accused. The counsel relied on following judgments in support of his contentions: 1. Pradeep Kumar vs. State of Haryana – 2000 CRLJ 3394;(P & H) 2. Duli Chand Vs. Delhi Admn-(1997) 4 SCC 122; Crl. Rev. No. 631/2001 Page 9 of 27 3. Mohanta Lal Saha vs. State of W. Bengal – 1968 ACJ 124 (SC); 4. Anandasing Neggi Vs. State- AIR 1969 49; 5. Kurban Hussain Vs. State – AIR 1965 SC 1916; 6. B.C. Goswami vs. Delhi Admn. – AIR 1973 SC 1457; 7. Krisan Vs. State of Haryana – 2003(2) CC cases 354 (P&H); 8. Dhan Bahadur & Ors. Vs. State – 2008 (VI) AD (Delhi) 225; 9. Syad Akbar Vs. State of Karnataka –(1980) 1 SCC 30 5. Refuting the contentions of counsel for the petitioner, Mr. Pawan Sharma submitted that in the revision there is very limited scope to interfere with the findings of the fact and for reappreciation of the evidence as power of the revisional court cannot be equated with the powers to be exercised by the appellate court. Counsel for the respondent further submitted that the petitioner has not been able to point out any glaring feature of illegality or perversity in the findings arrived at by the trial Crl. Rev. No. 631/2001 Page 10 of 27 court or the reasoning given by the appellate court, and therefore this court while exercising revisional jurisdiction will not take another possible view contrary to the concurrent view taken by both the courts below. Counsel for the respondent further submitted that the time of incident was reported by the driver of the motor cycle Mr. Vimal Kaushal at 12.30 P.M. and thereafter, the I.O. immediately visited the spot, wherefrom he went to the hospital where the victim was rushed after sustaining injuries in the accident. Counsel for the respondent further submitted that no explanation has come forth from the side of the petitioner as to why the petitioner had refused to join the TIP proceedings and therefore, adverse inference necessarily has to be drawn against him. Counsel for the respondent also submitted that much weightage cannot be given to Ex.DW-5/A as the same was merely a loose sheet and which is also not carrying any entry of the offending bus to exclusively show as to when the said bus reached back after its return from Plaza Cinema. Such loose time sheet could always be manipulated so as to suit the petitioner with the help of his own colleagues. Counsel for the respondent further submitted that the testimony of eye witness Mr. Vimal Kaushal PW- Crl. Rev. No. 631/2001 Page 11 of 27 1 remained totally unimpeached and unrebutted and therefore, the trial court and the appellate court rightly reached to the conclusion that the petitioner alone was responsible to cause the said accident. The counsel relied on the judgment of Duli Chand Vs.Delhi Admn.-1975 SCC (Cri) 663 in support of his contentions. 6. I have heard learned counsel for the parties and perused the record. 7. It is well settled that revisional jurisdiction is of the supervisory nature exercised by this Court for correcting miscarriage of justice and the revisional power cannot be equated with the power of an appellate court. In this regard in State of Kerala Vs. Putthumana IIIath Jathavedan Namboodiri-AIR 1999 SC 981, the Hon’ble Apex Court observed as under: “5. Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned Counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Crl. Rev. No. 631/2001 Page 12 of 27 Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.” 8. As would be seen from the above observation of Supreme Court a court of revision would not normally reassess evidence and interfere merely because the view taken by the trial court based on the available evidence could not be the possible view. In other words, revision would not lie on the mere ground of mis- appreciation of evidence unless any glaring feature is brought to the notice of the revisional court which would otherwise tantamount to flagrant miscarriage of justice. In this regard in Satyendra Nath Dutta and Another Vs. Ram Narain - (1975) 3 SCC 398, the Apex Court observed as under: Crl. Rev. No. 631/2001 Page 13 of 27 “4. In D. Stephens v. Nosibolla [1951] SCR 284 it was held by this Court that the revisional jurisdiction conferred by Section 439 of the Code ought not to be exercised lightly when it is invoked by a private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. "It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice." In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record. In Logendranath Jha and Ors. v. Polailal Biswas [195l] S.C.R. 676 the High Court, at the instance of private complainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision contained in Section 439(4) of the Code cannot be construed to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could, in the absence of any error on a point of law, re-appraise the evidence and reverse the findings of facts, provided only it stops short of finding the accused guilty and passing sentence on him. The order of re-trial based on a re-appraisal of evidence was characterized by this Court as a formal compliance with the requirements of Section 439(4). In K. Chinnaswamy Reddy v. State of Andhra Pradesh MANU/SC/0133/1962the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. The Court, however, indicated, in order to illustrate, a few of the cases in which the revisional jurisdiction could properly be used. An 'acquittal by a court lacking jurisdiction or excluding evidence which was admissible or relying on inadmissible evidence or where material evidence has been overlooked are some of the cases indicated by this Court as justifying the exercise of revisional powers. In Mahendra Pratap Singh v. Sarju Singh and Anr. MANU/SC/0398/1967 where the High Court in exercise of its revisional powers had, at the instance of a private party, directed re- trial of the accused, this Court on a review of the previous decisions re-affirmed that the High Court was wrong in entering into minute details of evidence, while examining the decision of the Sessions Court under Section 439(4) of the Code. The last decision to which reference may be made is Khetrabasi Samal etc. v. State of Orissa etc. MANU/SC/0113/1969. The High Court while exercising its revisional Crl. Rev. No. 631/2001 Page 14 of 27 jurisdiction had set aside the order of acquittal on the ground that the Magistrate should not have disbelieved the three eye-witnesses. The High Court sought justification for the course it adopted by observing that the Magistrate had not taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court.” 9. It is also well settled that concurrent findings of fact should not be generally disturbed unless it causes grave injustice. In this regard in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand,(2004) 7 SCC 659; the relevant paragraphs are reproduced as under: 22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”. It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. 23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn. 2 in which it is observed thus: (SCC p. 651, para 5) “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Crl. Rev. No. 631/2001 Page 15 of 27 Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.” 10 . Keeping these well settled principles of law in mind, the correctness of the order of the appellate court needs to be examined. 11 . Before dealing with the contentions of the counsel for the parties, it would be relevant to discuss the conduct of the petitioner driver. The driver of the bus Shri Bhairav Singh gave statement before M.M. on 17.4.1997, where he in unequivocal terms denied that the bus bearing registration no. DEP 9486 met with an accident on 1.10.91. He further stated that he started from Mayur Vihar terminal at about 12.15 p.m. and reached Plaza at about 1.10 P.M. and restarted after 5 to 10 minutes for Mayur Vihar and reached there at about 2.15 P.M. Toeing his line DW-1, Shri Babu Ram, conductor of the said bus on the date of the accident also narrated the same story and denied that the said bus met with an accident. DW-5 Ram Prashad, ATI Service(DTC) brought on record the time sheet Ex.DW/5A according to which the said bus departed from the Mayur Vihar Bus Terminal after 12.15 Crl. Rev. No. 631/2001 Page 16 of 27 P.M. for Plaza. Petitioner also examined two independent witnesses DW-2 Diwan Singh and DW-4 Mohan Singh who also conformed the version of the petitioner. But it is manifest from the testimony of the prosecution witnesses especially PW-1 Vimal Kaushal, who was also the victim to the accident and PW-7, Shri Ajit Singh, which will be discussed later, that the driver had been lying from the beginning and he not only took the alibi that the bus did not meet with an accident but also procured two witnesses, DW-2 and DW-4, and also made DW-1 and DW-5 to toe his line to make his cock and bull story appear like a reality. It has come on record that the bus hit the motorcycle from behind as per the mechanical inspection report of the motorcycle and testimony of PW-1 that the pillion rider died in the said accident. It is obvious that that bike driver was hit with such a force from behind by the bus driver due to which pillion rider and bike driver both fell down resulting into causing serious injuries to the pillion rider. The impact and the force with which the accident had occurred proves the testimony of PW 1 who in his deposition stated that the bus was being driven by the petitioner at a very high speed. No doubt in the given circumstances where the bike was hit from Crl. Rev. No. 631/2001 Page 17 of 27