RAJESH DOGRA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner herein stands convicted for commission of offences punishable under Sections 279, 337 & 304-A of the Indian Penal Code by the Court of learned Judicial Magistrate 1st Class, Theog in Case No. 161- 1 of 2007 decided on 21.04.2008, which conviction of the petitioner in appeal stands upheld by learned appellate Court in Criminal Appeal No. 23-S/10 of 2008 decided on 24.09.2010. Learned trial Court while convicting the accused for commission of offences punishable under Sections 279,337 and 304-A of the Indian Penal Code sentenced the petitioner to undergo simple imprisonment for three months under Section 279 of the Indian Penal Code and to pay a fine of Rs. 500/-. It further sentenced the petitioner to undergo simple imprisonment for three months under Section 337 of the Indian Penal Code and to pay a fine of Rs. 500/-. Besides this, learned trial Court sentenced the petitioner to undergo rigorous imprisonment for one year under Section 304-A of the Indian Penal Code and to pay a fine in the sum of Rs. 1000/-. All the sentences were ordered to run concurrently. Feeling aggrieved by the said conviction of his under Sections 279, 337 and 304 of the Indian Penal Code, the petitioner has challenged the above mentioned judgments passed by both the learned Courts below by way of this revision petition.

(2.) The case of the prosecution was that on 12.11.2006, petitioner/accused made a statement in Civil Hospital, Theog before the police that he was owner of Maruti Car bearing registration No. HP-08- 0425 and on 12.11.2006, he alongwith Subhash and Sardari Jinta were going to Maraog from Shimla in the abovementioned vehicle, which was being driven by his driver Subhash (wrongly mentioned as Satish Kumar) and when the said vehicle reached near Tarapur, the vehicle on account of its being driven in a high speed fell down in a Nalah about 40-50 feet down side the road. Thus, as per the statement of Rajesh Dogra, accident in question took place because of the rash and negligent driving of his driver who was asked by him to drive slowly. After the accident, the injured were brought to Civil Hospital, Theog by the local people. On the basis of said statement of Rajesh Dogra, FIR Ex. PW10/B was recorded. Rajesh Dogra and Subhash were medically examined in Civil Hospital, Theog, from where Subhash was referred to IGMC, Shimla, where he died because of injuries sustained in the accident. Investigation revealed that in fact at the time of accident, the car in question was not being driven by Subhash, but the same was being driven by accused Rajesh Dogra himself and he had made a false complaint by way of his statement which was recorded under Section 154 of the Code of Criminal Procedure to the effect that the accident took place on account of rash and negligent driving of Subhash. After completion of investigation, challan was filed in the Court against the accused for commission of offences punishable under Sections 279,337 and 304-A of the Indian Penal Code. Notice of accusation was put to the accused, to which he pleaded not guilty and claimed trial. On the basis of evidence produced on record both ocular as well as documentary by the prosecution, learned trial Court held that it had come in the statement of accused recorded under Section 313 of the Code of Criminal Procedure in reply to Question No. 2 that he himself was driving the vehicle, though the same was not being driven by him in a rash and negligent manner. Learned trial Court took note of the fact that no explanation was given neither any defence witness was examined by the accused to disprove the fact that he had not made a wrong statement to the police under Section 154 of the Code of Criminal Procedure. Learned trial Court also took note of the fact that as per the accused, the accident had taken place as the stearing rod of the vehicle developed defect, which resulted in the occurrence of the accident, whereas mechanical report Ex. PW3/A fully demonstrated that the stearing system of the car which was duly checked was found to be perfectly alright and the Mechanic who had examined the Car and had entered the witness box as PW-3 had categorically stated on oath that there was no mechanical defect in the vehicle. Learned trial Court also took note of the fact that the only eye witness, i.e. PW-6 Sardar Singh who was also travelling in the fatal Car had categorically stated that he was sitting on the back seat and Subhash and accused were sitting on the front seat. He further admitted that it was the accused, who was driving the vehicle at the relevant time. It was held by the learned trial Court that the contention of the accused that it was not he but Subhash who was driving the vehicle stood falsified by the testimony of PW-6 Sardar Singh and further the conduct of the accused casts doubt as firstly he falsely stated that he was not driving the vehicle and thereafter, he stated that the accident took place on account of a defect in the stearing system of the vehicle, but both these points stood disproved by the prosecution beyond reasonable doubt. Learned trial Court further went on to hold that as per spot map Ex. PW5/A, pucca structure of the road at the spot of accident was 12 feet and kacha structure was 5 feet. Thus, the road was quite wide and as per the report furnished by the Mechanic, the vehicle was not having any mechanical fault. On these basis, it was held by the learned trial Court that non-application of skillful mind well in time while driving amounts to gross negligence and that the prosecution had duly proved that accused was driving the vehicle in a rash and negligent manner. On these basis, learned trial Court held the accused guilty for commission of offences punishable under Sections 279, 337 and 304-A of the Indian Penal Code.

(3.) In appeal, learned appellate Court while upholding the findings so returned by the learned trial Court held that it was an admitted fact that at the time of accident in question, it was the accused himself who was driving the vehicle, which stood proved by PW-6 as well as the accused, who had admitted in his statement recorded under Section 313 of the Code of Criminal Procedure that it was he who was driving the vehicle. Learned appellate Court further held that it was again an admitted fact that FIR in the case was registered at the instance of accused himself, in which it was alleged by him that the accident took place on account of rash and negligent driving of his driver deceased Subhash. Learned appellate Court held that in fact the accused himself had mentioned in the FIR that the Car in question was being driven rashly and negligently and further in his statement recorded under Section 313 of the Code of Criminal Procedure, accused had admitted that it was he who was driving the vehicle in question. On these basis, it was held by the learned appellate Court that when it was the accused who was driving the vehicle, it was for him to have had explained as to how the accident took place and how the vehicle went out of the road about 40-50 feet down side because such a fact was only in his knowledge, however, he had not explained how the accident took place, rather he tried to establish that the accident took place due to mechanical failure, but said version of the accused was proved to be incorrect. Learned appellate Court further held that the conduct of the accused of lodging a false FIR against the deceased, position of the road at the spot and other facts proved the guilt of the accused and on these basis, it was held by the learned appellate Court that there was no reason to interfere with the judgment passed by learned trial Court.