IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 17 of 2005. Judgment reserved on :19.8.2011 Date of decision: 22.9.2011. Chuni Lal ….. Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Ms. Vidushi Sharma, Advocate. For the Respondent : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, J. The petitioner having been convicted and sentenced by both the Courts below for offences punishable under Sections 279, 304-A, 337 and 338 IPC has filed revision against judgment dated 12.1.2005 passed by learned Sessions Judge, Kullu in Criminal appeal No.7/2004, affirming judgment dated 22.5.2004 passed by learned Chief Judicial Magistrate, Kullu in Cr. Case No.118-II of 1998. 2. The prosecution case in brief is that on the basis of statement Ex.PW-5/A recorded under Section 154 Cr.P.C. of PW-5 Ramesh Chand, FIR Ex.PW-8/A was registered at Police Station, Kullu. The further case of the prosecution is that complainant hired jeep No.HP-34-49-0072 and he was travelling in that jeep, petitioner Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… was driving bus No.HP-34-1440 in high speed, the bus was ahead of the jeep. At Sarsari curve petitioner could not control the bus and it fell down due to rash and negligent driving of petitioner. In the accident nine persons had died. The injured were removed to hospital who suffered simple and grievous injuries. On completion of investigation, challan was submitted against petitioner. The notice of accusation was put to petitioner for offences punishable under Sections 279, 337, 338 and 304-A IPC. The petitioner denied the accusation and claimed trial. The prosecution has examined thirteen witnesses. The statement of petitioner was recorded under Section 313 Cr.P.C., he pleaded that tie rod of the bus had broken due to which brakes failed and did not function which caused the accident. The petitioner did not lead any evidence in defence. 3. On conclusion of trial, the learned Chief Judicial Magistrate on 22.5.2004 convicted the petitioner for offences punishable under Sections 279, 337, 338 and 304-A IPC. The petitioner was sentenced to suffer imprisonment for six months under Section 279 IPC, one year imprisonment under Section 304-A IPC and fine of Rs.1000/-, six months imprisonment under Section 337 IPC and six months imprisonment under Section 338 IPC. In default of payment of fine, the petitioner was directed to undergo further imprisonment for two months. All sentences were ordered to run concurrently. The learned Sessions Judge dismissed the appeal on 12.1.2005, hence revision. 4. I have heard the learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General for the State and …3… have also gone through the record. It has been submitted by learned counsel for the petitioner that accident occurred due to failure of brakes and not due to rash or negligent act of the petitioner. The two Courts below have misconstrued and misinterpreted the material on record in convicting and sentencing the petitioner. The sentence imposed is on the higher side. The learned Assistant Advocate General has submitted that accident occurred due to rash and negligent driving on the part of the petitioner. The two Courts below have rightly appreciated the material on record in convicting and sentencing the petitioner. In revision the evidence cannot be re- appreciated. 5. The accident had taken place on 20.7.1997. PW-1 Milap Chand has stated that on 20.7.1997, he was travelling in bus No.HP- 34-1440 which was being driven by petitioner in high speed. He tried to overtake another bus on narrow road, as a result of which bus fell down. He sustained injuries in the leg and his friend Pradeep Kumar died in the accident. There were 25/26 passengers in the bus. The accident took place due to rash and negligent driving of the petitioner. In the accident 5/6 persons had died. 6. PW-2 Anil Kumar has also stated that accident took place due to rash and negligent driving of petitioner. In the accident many passengers sustained injuries and some passengers died. He was taken to hospital where he was examined by doctor. He was sitting in the bus. He remained admitted in the hospital for 2/3 days. PW-3 Chetan Parkash has stated that on 20.7.1997 petitioner was …4… driving the bus. He came out of his house on hearing the cries after accident and found that the bus had rolled down 100 yards. Some passengers had died and some were injured. He did not support the prosecution and he was declared hostile. In cross-examination he admitted his signatures on Ex.PW-3/A, Ex.PW-3/B. 7. PW-4 Beer Nath has stated that he does not know the bus rolled down but he was sitting in the bus. He became unconscious and regained consciousness next day. He did not support the prosecution and was declared hostile. In cross- examination he has stated that the accident took place due to the negligent driving of the driver of the society bus. 8. PW-5 Ramesh Chand is the complainant. He has stated that he was travelling in jeep No.HP-49-0072 and bus No.HP-34-1440 was ahead of the jeep which was being driven by petitioner. The accident took place at about 9.15 a.m. near Sarsari. The accident took place due to rash and negligent driving of the petitioner. He made statement Ex.PW-5/A. He denied that the tie rod of the bus No.HP-34-1440 broke down which caused brakes failure, as a result of which bus took left side turn and fell down. 9. PW-6 Hem Raj is the vice President of Gram Panchayat and is resident of Sarsari. He has stated that driver started the bus and bus rolled down in nullah. PW-7 Shakuntla Devi has stated that she was travelling in bus No.HP-34-1440 which was being driven in high speed by petitioner. The bus in which she was travelling fell down. She and her friend sustained injuries in the accident. She remained admitted in the hospital. The accident took place due to …5… rash and negligent driving of the bus driver. PW-8 Sato Kumar ASI has stated that he registered the FIR Ex.PW-8/A on the basis of statement Ex.PW-5/A under Section 154 Cr.P.C. 10. PW-9 Roop Lal has stated that he inspected bus No.HP- 34-1440 on 21.7.1997 and prepared mechanical report Ex.PW-9/A. He has stated that according to his opinion the accident had taken place due to rash and negligent driving. He has denied that he has added mark A and mark B in Ex.PW-9/A later on. He denied that he prepared report Ex.PW-9/A in connivance with Investigating Officer. 11. PW-10 Dr. B.C. Kapoor has stated that on 20.7.1997 he had examined two unknown foreigners involved in bus accident; both of them expired in the hospital. Lal Chand was also brought in the hospital, who expired. Their MLC is Ex.PW-10/A. He examined Diwan Chand, Govind Nath, Shakuntla and issued MLC Ex.PW-10/B. One Durgi Devi involved in the accident was also examined by him and she was referred to IGMC, Shimla. Milap Chand, Ranjeet Kumar, Reeta Sarvjeet and Chet Ram were also examined by him. Milap Chand sustained fracture. He issued MLC Ex.PW-10/D of five persons. Narender Pal was examined by him and referred to IGMC, Shimla. He issued MLC Ex.PW-10/E. Rajiv Kumar was examined who had sustained fracture and MLC of Rajiv Kumar is Ex.PW-10/F. Chuni Lal sustained fracture in the same accident and MLC of Chuni Lal is Ex.PW-10/G. Sushma, Rajandeep, Sandeep, Sukhdev were also examined by him and their MLC is Ex.PW-10/H. Duni Chand, Anil Kumar, Bir Nath and Shyam Lal were examined by him and their MLC is Ex.PW10/J. The MLC of Daljeet is Ex.PW-10/K, who …6… sustained fracture. Ex.PW-10/K is the MLC of S. Randhawa who suffered fracture of 10 ribs etc. He has stated that injuries noticed by him while examining the aforesaid persons can be caused, if bus rolls down into nullah. PW-11 Dr. G.D. Gaur, Chief Medical Officer, Chamba has stated that he conducted radiological examination of injured and gave his opinion. 12. PW-12 Kanshi Ram ASI has stated that he took over the file from ASI Hari Pal and conducted the investigation. On completion of investigation, he submitted the file to P.N. Banyal, Inspector who submitted the challan in the Court. PW-13 Sushil Kumar has stated that on 20.7.1997 he was conductor in bus No.HP-34-5925. The bus reached at Sarsari at 9.a.m. In the meantime bus No.HP-34-4140 which was being driven by Chuni Lal with Shyam Lal conductor came there. The driver and conductor of bus No.HP-34-4140 had heated arguments and insisted that it was their “time”. The bus No.HP-34- 5925 had started. The petitioner kept on blowing horn and was trying to overtake their bus. In the meantime the passengers of his bus shouted that the bus following their bus had rolled down. The accident took place due to rash and negligent driving of the petitioner. 13. In the statement under Section 313 Cr.P.C. the petitioner has not denied the accident. He has rather stated that the accident took place due to breaking of tie rod and failure of brakes. The petitioner has not denied that he was not driving the bus No.HP- 34-4140. Many passengers sitting in the ill-fated bus sustained injuries, out of them nine passengers died and twenty passengers …7… sustained simple and grievous injuries. The petitioner has taken the plea that accident took place due to mechanical brake down. 14. Ex.PW-9/A is the inspection report of the bus conducted by PW-9 on 21.7.1997. It has been stated in the report that clutch, gear, steering, ignition/electric systems were checked and found in order. The foot brakes system was checked and found out of order due to accident. Skid marks were not found on the spot which points out that the petitioner had not used the foot brake. The width of the road at the place of accident was found 16½ feet. It has been reported that there was no defect in the vehicle before the accident and the accident took place due to rash and negligent driving. PW-9 was cross-examined by the defence but nothing favourable to the defence could be extracted in cross-examination. There is nothing on record to draw inference that the report has been prepared by PW-9 in connivance with investigating officer. It is not the case of the petitioner that PW-9 had not inspected the spot and the bus, nothing has come on record so as to disbelieve report Ex.PW-9/A. 15. Almost all the PWs, who were either travelling as passengers in the ill-fated bus or who were out side the bus have stated that accident took place due to rash and negligent driving of petitioner. It emerges from the evidence of PW-13 Sushil Kumar that petitioner wanted to overtake bus No.HP-34-5925. The petitioner had altercation immediately before the accident with the driver of bus No.HP-34-5925 with respect to “time”. It has come on record that the petitioner was in hurry to overtake bus No.HP-34-5925 and he was …8… blowing continuously horn to overtake the said bus. In the process, the bus No.HP-34-4140 which was being driven by petitioner went out of the road and rolled down and caused the accident. There is unimpeachable evidence on record to show that the accident had taken place due to rash or negligent driving of the petitioner of bus No.HP-34-4140, as a result of which nine persons died and about twenty injured with simple and grievous injuries. 16. In State of Karnataka v. Muralidhar (2009) 4 SCC 463, the trial Court sentenced the respondent to undergo imprisonment for six months and to pay a fine of Rs.1000/- with default stipulation under Section 338 IPC, one year and to pay a fine of Rs.5000/-with default stipulation for offence punishable under Section 304-A IPC. In the accident a boy died and one passenger sustained grievous injury. The appeal filed by the respondent was dismissed. The High Court for the offence under Section 338 IPC imposed a fine of Rs.1000/- with default stipulation and under Section 304-A IPC imposed a find of Rs.5000/- with default stipulation and out of the total amount of Rs.6000/- a sum of Rs.5000/- was ordered to be paid to the father of the deceased boy. The Supreme Court has held that High Court without considering the relevant aspects and without indicating any reason, waived the custodial sentence and imposed only fine. The judgment of the High Court was held unsustainable and was set aside and that of the trial Court was restored. In the present case nine persons lost their lives and twenty persons sustained simple and grievous injuries. The accident occurred as the petitioner was in hurry to overtake the other bus. …9… 17. The Supreme Court in Dalbir Singh v. State of Haryana (2000) 5 SCC 82 has held as follows:- “When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” The Supreme Court rejected the contention of giving of benefit of Section 4 of the Probation of Offender Act, 1958 and has held as follows:- 13. “Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under S. 304-A, I.P.C. as attracting the benevolent provisions of S. 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing …10… death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles.” 18. In Kuldip Singh vs. State of Himachal Pradesh (2008) 14 SCC 795, the appellant was prosecuted for offence punishable under Sections 279, 337,338 and 304-A IPC and imposed various sentences which were directed to run concurrently. The maximum sentence imposed was one year. The allegations against the appellant were that he lost control of the truck in which several passengers were travelling, as a result of which the truck rolled down, killing four persons and injured fifty other of the marriage party. The Supreme Court noticed Dalbir Singh and Kuldip Singh (supra) and dismissed the appeal. 19. The two Courts below have considered the evidence on record and have recorded concurrent findings of facts regarding the rash and negligent driving on the part of the petitioner in causing the accident. There is no misconstruction and misinterpretation of the evidence. The view taken by the two Courts below emerges from the evidence on record and the findings recorded by the two Courts below are affirmed. In Dalbir Singh and Kuldip Singh (supra) the maximum imprisonment was one year. In the present case also the maximum sentence imposed by the Courts below is one year. In any case no case has been made out by the petitioner to take a lenient view. There is no merit in the revision which is dismissed. The bail bonds of the petitioner are cancelled. He is directed to surrender to the trial Court immediately. September 22, 2011. ( Kuldip Singh ) (sks) Judge. …11…