HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 139 of 2002 Indra Singh Alias Harish Singh. ……..Revisionist. Versus tate of Uttarakhand. …….Respondent S Mr. C.D. Bahuguna, Advocate for the revisionist. Mr.Prabhakar Joshi, Brief Holder for the State. Dated: November 03, 2011 Hon’ble V.K. Bist, J. This criminal revision preferred, under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 17.12.2002 passed by Sessions Judge, Champawat in Criminal Appeal No. 13 of 2002 and the judgment and order dated 01.11.2002 passed by Chief Judicial Magistrate, Champawat in Criminal Case No. 205 of 2001, whereby the Courts below convicted the revisionist under Section 279, 337, 427 and 304-A of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and sentenced him to undergo 1½ years rigorous imprisonment with fine of ` 3,000/-under Section 304-A I.P.C., six months rigorous imprisonment with fine of ` 1,000/- under Section 279 I.P.C., six months rigorous imprisonment with fine of ` 500/- under Section 337 I.P.C. and six months rigorous imprisonment with fine of ` 1,000/- under Section 427 I.P.C. In default of payment of fine, further four months rigorous imprisonment was awarded. It was directed that all the sentences shall run concurrently. 2. I have heard Mr. C.D. Bahuguna, learned counsel for the revisionist and Mr. Prabhakar Joshi, learned Brief Holder for the State and perused the record. 2 3. Prosecution case, in brief, is that on 20.03.2000 at about 12:00 noon, the revisionist Indra Singh, while carrying passengers from Lohaghat to Raighav in Jeep No. U.P. 03-2654, was plying the vehicle in very rash and negligent manner. It is alleged that when the said jeep reached at Vardakhan, due to rash and negligent driving on the part of the driver, it fell 50 feet downwards into a trench, due to which four passengers died instantaneous at the spot, one co-passenger died in the hospital and some other persons, standing on the road or boarded on said jeep, have also received simple as well as grievous injuries. A First Information Report (Ext.A1) was lodged by (PW-1) Mr. Ramesh Chandra on 20.03.2000 at 12:05 p.m. to the Patwari, Revenue Police Circle-Vardakhan, Tehsil Champawat. Investigation of the case was handed over to (PW-17) Bahadur Singh Mehta, Patwari. During investigation, the Investigating Officer prepared inquest report and the dead bodies were sent for postmortem. Postmortem of four dead bodies was conducted by PW-14 Dr. Narayan Chakraworti on 20.03.2000. The District Magistrate, Champawat vide his order dated 03.04.2002 and the Superintendent of Police, Champawat, vide his order dated 05.04.2002 handed over the investigation to regular police. Thereafter, investigation was entrusted to (PW-18) S.H.O. P.S. Bhandari. PW-18 recorded statement of the witnesses and after making spot inspection, he prepared the site-plan. PW-18, during investigation, found that at the time of said accident, the revisionist was plying the jeep in question and the accident took place due to his negligence. Accordingly, the I.O. submitted charge sheet (Ext. A-22) against the accused/revisionist under Section 279, 337, 427 and 304-A I.P.C. 3 4. Learned Chief Judicial Magistrate, Champawat on 16.02.2002 recorded the statement of the accused/ revisionist, in which he admitted that at the time of said accident he was plying the jeep; the jeep fell into the trench due to which the passengers boarded on said jeep, namely, Madan Singh, Kailash Singh, Smt. Bhagirathi Devi and Dungar Singh died on the spot and one passenger Vikram Singh died in the hospital. He also admitted that Smt. Basanti Devi, Dayakishan Joshi, Trilok Singh Adhikari, Bachiram, Smt. Basanti Devi W/o Hayat Singh, Km. Mamta, Sonu, Gopal Singh etc. became injured. The accused/revisionist denied the charge of rash and negligent driving on his part with the averment that the accident in question was the result of technical defects of the Jeep. 5. Learned counsel for the revisionist contended that (PW-5) Smt. Basanti Devi, one of the passenger of the said jeep survived, but her husband who was also sitting in the jeep, succumbed to the injuries sustained by him in the accident. He submits that Smt. Basanti Devi was the most salient witness of the incident in question, but she did not state, during examination-in-chief, that the revisionist was driving the jeep in rash and negligent manner, rather in her cross-examination she categorically stated that accident in question occurred as a result of locking of steering of the jeep. He argued that during the accident some passer- bye, namely, (PW-2) Bhupal Singh and (PW-3) Bishan Kumar also sustained physical injuries, out of which injured Bhupal Singh, in his testimony, has stated that he raised his hands before the driver of said jeep in order to lift him in the jeep and looking his posture, the driver raised his voice that break 4 of the jeep had failed and after few seconds the jeep fell into the trench, after dashing him from the corner of the jeep as a result of which he sustained injuries on his person. Another injured Bishan Kumar, in his testimony, has stated that when the accident occurred, he was waiting at the road-side for vehicle in order to go to his village and he heard the hue and cry of the driver of the ill-fated jeep, who was saying ‘save yourself’ and in the meanwhile the jeep fell into the ditch, after dashing him from the corner of the jeep as a result of which he sustained injuries on his person. In his cross-examination this witness also stated that the driver was saying that the break of the jeep has been failed. He further contended that the third ocular evidence produced by the prosecution is of (PW-6) injured Trilok Singh, who, during his cross-examination, has categorically stated that the accident occurred due to steering lock and the driver was not plying the jeep in rash and negligent manner. Learned counsel for the revisionist drew attention towards the examination-in-chief of the injured witness (PW-9) Bachiram, who deposed that he and his wife sustained injuries from the jeep in question. This witness, in his cross-examination has stated that at the time of accident the driver was crying ‘save yourself, the break of the jeep has been failed’. He submitted that prosecution has also produced (PW-7) Pitambar Joshi, Senior Forman, who after making physical inspection of the vehicle in question gave expert opinion about the condition of the vehicle and the probable cause of the accident. This witness has categorically stated that during examination of the vehicle he found that the steering of the jeep was locked and it was a probable reason that the jeep in question might have met with the accident. 5 6. Learned counsel for the revisionist contended that from the assessment of the entire evidence produced by prosecution on record, offence regarding rash and negligent driving on the part of the revisionist at the date, time and place cannot be fastened upon him. He contended that there is no iota of evidence on record, which would suggest that the accident in question occurred as a result of rash and negligent driving on the part of the revisionist. He contended that in the facts and circumstances, as three eyewitnesses produced by the prosecution have been declared hostile, the order of conviction and sentence awarded by the Courts below is not sustainable in the eye of law and is liable to be set- aside. 7. Mr. Prabhakar Joshi, learned Brief Holder for the State, on the other hand, submitted that though PW-7 Pitambar Joshi (as technical expert) stated that he made physical inspection of the jeep and found that its steering was locked and it was a probable reason that the jeep in question might have met with the accident, but the accused/revisionist could not show that such defect existed before the said accident and it cannot be presumed that steering of the jeep was locked before the accident. He further submitted that revisionist himself jumped out of the vehicle and survived safely. This act itself illustrates that the vehicle in question was not under his control which shows that he was rash. He contended that the Courts below have rightly convicted and sentenced the accused/revisionist, which cannot be altered at this stage. 6 8. I have considered the submissions advanced by the learned counsel for the parties and have gone through the entire evidence produced by the prosecution. In the instant case, PW-1 Ramesh Chandra is the complainant and he, first of all, reported the matter to the Patwari concerned, PW-14 Dr. Narayan Chakrawarti, conducted post-mortem on the dead bodies and prepared inquest reports, PW-8 Girdhar Singh did not witness the accident, PW.11 Mohan Singh is the owner of the vehicle in question, he also did not witness the accident in question, PW-12 Diwan Singh, PW-13 Vikram Singh, PW- 15 Sher Singh and PW-16 Manavir Singh are the witnesses of inquest report, they also did not witness the accident in question and they are formal witnesses. PW-17 Bahadur Singh-Patwari and PW-18 G.S. Bhandari, S.H.O. are the Investigating Officers. Appraisal of the evidence of remaining witnesses, I find that in the case in hand, most salient witness is PW-5 Basanti Devi, who was also travelling in the jeep on the date, time and place, which met with said accident. Although, the prosecution has declared her hostile, but her ocular version cannot be discarded in any manner. In her examination-in-chief, she has categorically stated that she cannot state that in what manner the accused was plying the jeep. In her cross- examination she categorically stated that she couldn’t say that the accident occurred due to the rash and negligent driving on the part of the accused. She categorically denied that the driver of the jeep was plying the vehicle in very rash and negligent manner. No suggestion, whatsoever was put to this witness in her cross- examination about her conduct in advancing hostile statement. PW. 6 and PW-10, who were the passer-byes at the site and received injuries in the accident on the fateful 7 day from the jeep, were also declared hostile. No suggestion was put to these witnesses too, which would suggest that they have been won over by the defence. The accident in question occurred in the hilly region. Due to mechanical defects of the vehicles, accident may occur in such areas. If steering of any vehicle is locked in hilly region, in curves, possibility of felling down of such vehicle cannot be ruled out. From overall assessment of the evidence on record, I concur with the stand by the learned counsel for the revisionist. Consequently, the charge of rash and negligent driving to endanger human life or likely to cause hurt or injury to any other person, causing death of any person by rash or negligent act not amounting to culpable homicide, causing hurt to any person by doing any act so rashly or negligently as to endanger human life or the personal safety of others or committing mischief and thereby causing loss or damage to the amount of fifty rupees or upwards are not proved against the revisionist beyond reasonable doubt. I do not concur with the findings recorded by the Courts below. The Courts below erred in holding revisionist guilty for negligence in driving the vehicle and the orders impugned warrant interference. Thus, the judgment and orders of the Courts below holding the revisionist guilty of the charges are not sustainable, consequently, the impugned orders and sentence awarded to the revisionist under Section 279, 337, 427 and 304-A I.P.C. are liable to be set- aside. 9. Accordingly, the revision is allowed. The judgment and order dated 17.12.2002 passed by Sessions Judge, Champawat in Criminal Appeal No. 13 of 2002 as well as the judgment and order dated 01.11.2002 passed 8 by Chief Judicial Magistrate, Champawat in Criminal Case No. 205 of 2001, are set-aside. The revisionist is acquitted of all the charges levelled against him. 10. Let a copy of this judgment alongwith the record of the Court below be sent back to the Court concerned. (V.K. Bist, J.) 03.11.2011 NCM: