BAROTIWALA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS revision has been directed against judgment dated 16.5.2006 passed by Additional Sessions Judge, Solan in Criminal Appeal No. 31 -NL/10 of 2003 affirming judgment dated 21.10.2003 in Criminal Case No. 50/2 of 2001 passed by Sub Divisional Judicial Magistrate, Nalagarh convicting the petitioner for offences punishable under Sections 279, 337, 304A IPC and sentencing the petitioner for three months simple imprisonment and fine of Rs.500/ - for offence punishable under Section 279 IPC, three months simple imprisonment and fine of Rs.500/ - for offence punishable under Section 337 IPC and sentence of six months simple imprisonment and fine of Rs.1, 000/ - for offence punishable under Section 304 -A IPC, with default clause. The prosecution case, in brief, is that on 25.12.2000 information was given to police that near place Bhud one bus and van met with an accident. On this, HC. Harmesh Kumar alongwith other policemen proceeded to the spot. The statement of PW -4 Bhupesh Kumar under Section 154 Cr.P.C Ex. P -4 was recorded and then FIR Ex. P -3 came to be registered.

(2.) THE further case of the prosecution is that complainant and his wife Sushma, PW -5 Bachan and his wife PW -6 Veena on 17.12.2000 had come from Panipat to Shimla in a taxi HP -01 -1003. They proceeded to Manali and then to Chandigarh via Nalagarh. Sushma, PW -5 Bachhan and PW -6 Veena were sitting on the back seat of the taxi. PW -4 Bhupesh complainant and driver were sitting on the front seats. At a place about 8 km. from Nalagarh bus bearing registration No. HP -12 -4413 came from Pinjore side in high speed. The driver of the bus started overtaking and hit the taxi in which complainant and others were sitting. It has been alleged that on account of rash and negligent driving of the petitioner Sushma and driver of the taxi died and others were injured. The MLCs of the injured were obtained. The post -mortems on the bodies of the dead persons got conducted. The mechanical report Ex. P -1 of both the vehicles was obtained. On completion of investigation, report under Section 173 Cr.P.C. was submitted.

(3.) I have heard Mr. Ramakant Sharma, learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General for the respondent. It has been submitted on behalf of the petitioner that the two Courts below have erred in convicting and sentencing the petitioner by misconstruing and misinterpreting the evidence on record. The accident took place not due to rash or negligent driving on the part of the petitioner but due to the negligence, fault of the taxi driver, who struck the taxi in the bus which just started after some passengers, alighted from the bus on the way. It has been submitted that the evidence led by the prosecution nowhere establishes the negligence of the driver. The learned Assistant Advocate General has supported the impugned judgment and has submitted that re -appreciation of the evidence is not possible in revision. The two Courts below have recorded concurrent findings of facts. In any case, the view taken by the two Courts below emerges from the evidence on record.