Himachal Pradesh High Court
State Of Himachal Pradesh vs Vishal on 4 October, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.213 of 2008.
Reserved on : 27.09.2016.
.
Decided on : 04.10.2016.
State of Himachal Pradesh .......Appellant.
Versus
Vishal ......Respondent.
Coram
of
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellant : Mr. Virender Kumar Verma, Addl. AG with rt Mr. Pushpinder Singh Jaswal, Dy. Advocate General.
For the respondent : Mr. Varun Chauhan, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-
State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Sections 279 and 337 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Court No.V, Shimla, District Shimla, dated 12.11.2007, in Criminal Case No.12-2 of 2005.
2. Briefly stating facts giving rise to the present appeal are that statement under Section 154 Cr. P.C of complainant Hari Krishan (PW-4) was recorded by the Police that he was driving Motorcycle on 18.11.2004, at about 1:15 PM, when he reached 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:21:03 :::HCHP 2near Victory Tunnel, Shimla, a Scooter bearing No.CH-01X-7681 LML Vespa was being driven by the accused (hereinafter referred to as .
'the accused') at a high speed. Gurprit Singh was also sitting on the scooter as a pillion rider. Due to the rash and negligent driving of the accused, he struck against his scooter with a lady Kabo Devi. The handle of the Scooter struck with the lady, due to which, she fell upon the STD Board erected on the side of the road. The of complainant immediately reported the matter to Head Constable, who was on duty on the spot, who took the injured, namely, Kabo rt Devi (PW-8) to DDU Hospital, Shimla, for medical examination.
During the course of investigation, the Police took into possession the Scooter bearing No. CH-01X-7681, prepared site plan and also procured the MLC of the injured Kabo Devi.
3. The prosecution, in order to prove its case, examined as many as 09 witnesses. Statement of the accused was recorded under Section 313 Cr. P.C, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused.
4. Learned Additional Advocate General appearing on behalf of the appellant has argued that the learned Court below has not appreciated the fact that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.
::: Downloaded on - 15/04/2017 21:21:03 :::HCHP 35. On the other hand, learned counsel appearing on behalf of the accused has argued that the prosecution has failed .
to prove the guilt of the accused beyond reasonable doubt. There is no evidence that the accused was guilty so, no interference is required for in the well reasoned judgment passed by the learned Court below, therefore, the accused was rightly acquitted.
6. To appreciate the arguments of learned Additional of Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely rt scrutinized the statements of the witnesses.
7. PW-4 Hari Krishan is the eye witness of the occurrence. He has stated that the injured (PW-8) suffered injuries on her leg. PW-5 Dr. Manjula Gupta, has proved on record MLC Ex.PW5/A and found the following injuries on the person of PW-8 :
"1. Swelling on left leg with tenderness.
2. About one inch transverse wound lacerated at the site of swelling.
3. Fresh bleeding was present from the wound.
4. 1 m.m abrasion below right elbow.
5. X-ray of left leg was advised. As per MLC, X-ray report Ex.PA no fracture. B detected hence all injuries were simple in nature. Probation of injury was fresh and caused with blunt weapon."
8. PW-3 Gian Chand, Mechanic, has found that there was no mechanical defect in the Scooter. The injured Kabo Devi, ::: Downloaded on - 15/04/2017 21:21:03 :::HCHP 4 has appeared as PW-8. She has stated through Smt. Vinay Kumari, Principal in Speech and Hearing School, Dhali, District Shimla, H.P, .
that on the fateful day, while she was coming from her house, a Scooter driver struck against her, due to which she suffered injuries on her leg. The Scooter driver has also taken her to the hospital.
She has also stated that she can identify the driver of the Scooter.
She has also stated that the accused was driving the Scooter at a of high speed.
9. The statement of other eye witnesses i.e PW-2 and rt PW-4, it is evident that there are material contradictions in their statements. PW-4 stated that the accused was driving the scooter in a normal speed of 40/50. On the other hand, PW-2 has stated that he was driving the scooter at a very high speed. PW-2 has stated that the scooter hit with the STD board erected on the side of the road due to which the lady suffered injuries. As per the prosecution case, the scooter hit the injured lady and she fell upon the STD board erected on the side of the road. How it comes that when the scooter was driven in the middle of the road and then it hit a lady and she collided with the STD Board erected in the side of the road. PW-4 Hari Krishan, in his statement, has stated that the scooter has not hit the injured lady directly, but instead of it hit firstly with the STD board, which in turn hit the injured lady and due to this she suffered injuries. There are material contradictions in the ::: Downloaded on - 15/04/2017 21:21:03 :::HCHP 5 statements of both these witnesses inter se, as well as with the prosecution story also. Both these witnesses are also Police .
Officials. As per PW-2, at the time of occurrence, a lot of people gathered on the spot, but none has been joined in the investigation by the Police. As per the prosecution, the accused was also accompanied by a pillion rider. This pillion rider has also not been examined by the prosecution. The prosecution has failed of to prove the guilt of the accused conclusively and beyond the shadow of reasonable doubt.
10. rt From the above, it is difficult to conclude that the accident has taken place due to rash and negligent driving of the accused. Further, the conduct of the accused shows that he took the injured to the hospital and got her treated after serving water.
Though, as per the Police witnesses, the accused has not taken her (injured) to the hospital and there is no murmur that the accused has taken her to the hospital, which the injured has otherwise stated. So, the link evidence is missing in this case.
11. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or ::: Downloaded on - 15/04/2017 21:21:03 :::HCHP 6 non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.
.
12. The Hon'ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
of
13. So, in my considered view the prosecution has failed to prove the guilt of the accused conclusively and beyond rt reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court.
14. In view of the aforesaid decisions of the Hon'ble Supreme Court and discussion made hereinabove, I find no merit in this appeal and the same is accordingly dismissed. Record of the learned trial Court be sent back forthwith.
(Chander Bhusan Barowalia)
4th October, 2016 Judge
(CS)
::: Downloaded on - 15/04/2017 21:21:03 :::HCHP