Raj Kumar vs State Of H.P

2 at Tunu Hatti, bus No.PJC-4075 belonging to Punjab

Roadways was coming from the opposite direction being

driven by the appellant. It was alleged that due to the rash

and negligent driving of the vehicle by the appellant, the

vehicle struck against the HRTC Bus due to which Master

Manoj Kumar and Kumari Rajeswari, son and daughter of

Shri Mast Ram respectively sustained fatal head injuries. The

accident took place around 12.45 p.m. The accident was

reported to the police by Mast Ram whose statement was

recorded by the police under Section 154 of the Code of

Criminal Procedure, 1973 (in short `Cr.P.C.') marked Ext.PW-

7/A. On the basis of the statement of the complainant, formal

first information report came to be registered at Police Station,

Dalhousie on the same day at about 3.15 P.M. Head

Constable Kishore Kumar (PW-8) visited the spot immediately

and prepared spot map Exbt.PW-8/A and summoned Sarwan

Singh (PW-3) photographer who clicked the photographs of

both the vehicles and the bodies of the deceased Manoj Kumar

and Kumari Rajeswari lying on the seat inside the HRTC Bus.

3 Photographs Negatives Exbts.PW-3/H to PW-3/C were placed

on record. During recording of the statements of the material

witnesses by PW Kishore Kumar, it was found that the

accident had taken place due to the rash and negligent driving

of the vehicle by the appellant in which heads of both the

victims were crushed. After completion of the investigation

charge sheet was laid against the appellant for offence

punishable under Sections 279 and 304-A IPC before the trial

Magistrate.

The Trial Magistrate found the evidence to be cogent.

Relying on the evidence of father (PW7) and considering the

other material on record, the Trial Court recorded the

conviction as noted above. But the appellant was extended

the benefit of the Probation of Offenders Act, 1958 (in short

`Probation Act'). The State of Himachal Pradesh filed an

appeal before the Sessions Judge questioning grant of benefit

under the Probation Act. Learned Sessions Judge set aside

the order of the Trial Court and remitted the matter for

4 passing appropriate sentence. Thereafter, as noted above, the

learned Trial Magistrate sentenced the appellant by imposing

custodial sentence and fine.

4. The basic stand taken before the High Court in support

of the revision petition was that no evidence was led by the

prosecution that the accident was as result of rash and

negligent driving of the appellant. It was submitted that the

driver of HRTC Bus was negligent in driving which resulted in

the accident. The High Court considered the limited scope for

interference in exercise of the revisional jurisdiction and the

revision. The High Court analysed the factual position to

conclude that the findings recorded by the Trial Court and the

First Appellate Court were not erroneous.

5. In support of the appeal, leaned counsel for the appellant

submitted that the basic requirements to attract Sections 279

and 304A has not been established. Alternatively, it was

submitted that the sentence is harsh. The accident took place

5 about two decades back and the appellant has already

suffered custody of some period and even if the conviction is

maintained the sentence should be reduced to the period

already undergone.

6. Learned counsel for the respondent-State on the other

hand supported the judgment of the courts below.

7. In Duli Chand v. Delhi Administration (AIR 1975 SC

1960), the scope of invoking jurisdiction of the High Court in

criminal revision was examined and it was held in a case

involving vehicular accident as follows:

"The question whether the accused was guilty of negligence in driving the bus and death of the deceased was caused due to negligent driving is a question of fact which depends for its determination on appreciation of the evidence. While the Magistrate, and the Additional Sessions Judge arrived on assessment of the evidence at a concurrent finding of fact that the death of the deceased was caused by negligent driving of bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence reviewed the same in order to justify itself that there was evidence in support of the 6 finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by the negligent driving of the bus by the accused, the Supreme Court on an appeal under Article 136 refused to interfere."

8. In State of Orissa v. Nakula Sahu and Ors. (AIR 1979 SC

663) it was held that the High Court should not have

interfered with the concurrent findings recorded by the

Trial Court and the Sessions Judge in exercise of

revisional jurisdiction when there was no error of fact or

law arrived at by the Trial Court or the Sessions Judge.

In State of Kerala v. Puttamana Illath Jathavedan

Namboodiri (1999 (2) SCC 452) it was held that the

revisional 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 jurisdiction. Ordinarily,

therefore, it would not be appropriate for the High Court

to re-appreciate the evidence and come to its own 7 conclusion on the same unless any glaring feature is

brought to the notice of the High Court which would

otherwise tantamount to gross miscarriage of justice.

9. We find that the trial Court and the Revisional Court have

analysed the evidence in detail to come to the conclusion about

the guilt of the accused. There is no manifest error in the

conclusions or in analyzing the evidence. That being so, the

High Court was justified in law in not exercising revisional

jurisdiction.

10. The appeal is dismissed.

........................................ ...J. (Dr. ARIJIT PASAYAT)

...........................................J. (P. SATHASIVAM)

.............

..............................J. (Dr. MUKUNDAKAM SHARMA) 8 New Delhi, July 14, 2008

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