Himachal Pradesh High Court
State Of H.P vs Sandeep Sharma on 24 June, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.Appeal No. 682 of 2008
Reserved on : 17.6.2019
Date of decision : 24.06.2019
State of H.P ... Appellant.
Versus
Sandeep Sharma
...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Ms. Divya Sood, Dy. A.G. & Mr. Manoj Bagga, Assistant Advocate General.
For the Respondent : Mr. Bhuvnesh Sharma, Advocate.
Anoop Chitkara, Judge
1. The present matter arises out of F.I.R No. 408 of 2005 dated 9th December, 2005 registered in Police Station, Hamirpur, for commission of offences punishable under Sections 279 and 337 of the Indian Penal Code. During the investigation, the injured succumbed to his injuries and Section 304A IPC was added in place of Section 337 IPC. The matter was investigated and after completing all codal 1 Whether reporters of Local Papers may be allowed to see the judgment?
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formalities and on conclusion of the investigation into the offence .
allegedly committed by the accused, challan was prepared and filed in the Court.
2. Vide order dated 15th January, 2007, learned trial Court in Cr. Case No.22-1 of 2006/126-II of 2006 put notice of acquisition to the accused for commission of offences punishable under Sections 279 and 304-A IPC for driving motorcycle in public highway in a rash and negligent manner and for causing death of victim, not amounting to culpable homicide due to rash and negligent manner.
3. The learned trial Court recorded statement of witnesses.
After completion of the prosecution evidence, trial Court in compliance to Section 313 Cr.P.C. put incriminating circumstances to the accused.
In answers to questions put under Section 313 Cr.P.C the accused has admitted the following circumstances:-
(a) Deceased, PW-2 Sunil Kumar and PW-3 Ranjit Singh were going towards their home.
(b) He was driving motorcycle bearing registration No. HP-22A-2843.
(c) F.I.R was registered on the basis of information given by Sunil Attri.::: Downloaded on - 28/09/2019 23:48:00 :::HCHP
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(d) Medical examination Ext.PW-7/A of injured and lateron post mortem examination of the deceased is .
Ext.PW-6/B.
(e) Motor cycle was seized alongwith its documents.
(f) Motorcycle was mechanically examined by a mechanic.
(g) The Investigating Officer prepared the site plan of the accident and such site plan was tendered in evidence is Ext.PW-9/B
(h) However, in the concluding part of statement under Section 313 Cr.P.C., in answers to the circumstances of witnesses testifying against the accused, his stand is that they had done so because they were related to the deceased. He further stated that he was not at fault and was innocent.
(i) The accused did not lead any defence evidence.
3. The Chief Judicial Magistrate, Hamirpur, vide judgement dated 06.02.2008 had convicted the accused for commission of offences punishable under Sections 279 and 304A I.P.C. The trial Court had accordingly sentenced the accused to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1000/- and in case of default of payment of fine sentenced him to ::: Downloaded on - 28/09/2019 23:48:00 :::HCHP ...4...
undergo simple imprisonment for a period of one month for .
commission of offence punishable under Section 279 IPC and the accused was also sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default of payment of fine the accused was sentenced to undergo simple imprisonment for a period of three months for the commission of offence punishable under Section 304-A IPC.
4. Feeling aggrieved, the convict challenged the judgement of conviction by way of filing an appeal under Section 374 Cr.P.C.
before the learned Sessions Judge, Hamirpur. The said appeal was registered as Cr. Appeal No. 11 of 2008. Vide judgement dated 17th July, 2008, learned Sessions Judge, allowed the appeal, set-aside the conviction, which resulted into acquittal of all charges.
5. Now, it is the State, which is aggrieved and hence the present appeal. Learned Deputy Advocate General has contended that the findings of acquittal recorded by the learned Sessions Judge are not based on proper appreciation of evidence. Hence, she contends that the findings of acquittal deserve to be reversed by this Court in exercise of its appellate jurisdiction and it being replaced by findings of conviction.
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6. The learned counsel appearing for the respondent has .
contended that acquittal is based on mature and balanced appreciation of evidence on record and not necessitate any interference.
7. The question before this Court is to decide whether the accident took place due to error of judgement while driving the vehicle or due to error on the part of the lady, who as per PW-5 was crossing the road at the time or that the accused was driving his motorcycle at that point of time in a rash and negligent manner.
8. This Court with the able assistance of the learned counsel on both sides has with studied care and incision, evaluated the entire evidence on record.
9. The gist of evidence is as follows:
(a) As per F.I.R (Ext.PW-8/B), the informant Sunil Kumar was a student of BCA 2nd year.
(b) On 9th December, 2005 at around 4.30 p.m, he alongwith his mother was present at the spot known as Amartex in Hamirpur H.P. At that time they were walking on the left side of the road.
(c) At that moment, one motorcyclist was driving his vehicle at high speed and he was driving his vehicle carelessly. The motorcyclist hit her mother ::: Downloaded on - 28/09/2019 23:48:00 :::HCHP ...6...
on her legs and due to such impact she fell-down and her head struck on the road. She had become .
unconscious at the spot. He has mentioned number of the motorcycle as HP-22A-2843. The complainant has further stated in F.I.R that the accident took place due to high speed and rash and negligent driving of the motorcyclist. It has further been stated in the F.I.R. that lateron after inquiry the name of the motorcyclist was known as Sandeep Kumar, who is respondent herein.
(d) Sub Inspector Hem Raj (PW-9) conducted the investigation. The postmortem (Ext.PW-16/A) of deceased was got conducted from Regional Hospital, Hamirpur. As per the postmortem report the cause of death was head injury. On completion of the investigation SHO Police Station, Hamirpur filed a report under Section 173(2) Cr.P.C. before the Court of the Chief Judicial Magistrate, Hamirpur. The Chief Judicial Magistrate, Hamirpur, took cognizance of the offence vide order dated 2nd March, 2006.
10. After considering the submissions made by counsel for the parties, appreciation of entire evidence and application of relevant law, this Court arrives at following conclusion ::: Downloaded on - 28/09/2019 23:48:00 :::HCHP ...7...
APPRECIATION OF PROSECUTION EVIDENCE:
.
(a). The relevant prosecution witnesses who have testified on oath before the learned trial Court have contradicted with each other in material aspects.
(b) PW-2 Sunil Kumar, on whose information F.I.R was registered, in his examination in chief has reiterated the version which he had stated in his statement under Section 154 Cr.P.C. However, in cross-examination, before the learned trial Court, this witness made material improvement, wherein he stated that at the time of accident he alongwith his sister as well as his would be sister-in-law (Bhabi) was also with them near Amertex. He clarifies this improvement by adding that number of persons were present there and specifically stated that they were six persons who were present at that time.
(c) Husband of the deceased Ranjeet Singh was cited as PW-3. In his cross-examination, he stated that he did not reach hospital at about 4.15 p.m. He denied the suggestion that they had bought the clothes from Amertex. It would be improbable that the husband would not accompany his wife to the hospital, when he was present at the spot at the time of accident. However, in MLC Ext.PW-
7/A it has been mentioned by the doctor that patient was brought to ::: Downloaded on - 28/09/2019 23:48:00 :::HCHP ...8...
the hospital by husband, daughter and son and by other family .
members.
(d) The next contradiction in the statement of PW-2 Sunil Kumar is that, he in F.I.R, does not mention the speed of the vehicle but in his statement on oath he has specifically stated that the speed of motor-cycle was 60 to 70 kilometer per hour. He did not clarify to the Court, on what basis he assessed the speed of the motorcycle to be 60 to 70 kilometer per hour.
(e) The case of the defence is that after hearing the sound of motorcycle, the lady got nervous and fell down on the road and she died due to the injuries sustained by fall. This suggestion was denied by PW-2 Sunil Kumar.
(f) Another contradiction in the case of the prosecution is that as per the statement of PW-2 Sunil Kumar, his parents did not buy any goods from Amartex. He further stated that they had bought jewelery from goldsmith. From this statement one fact is inferable is that they had not purchased any other thing except jewelery. However, husband of deceased Ranjeet Singh, who appeared as PW-3, stated in his examination in chief that he alongwith his wife were going towards Amartex after purchasing clothes from Puri Cloth House. This ::: Downloaded on - 28/09/2019 23:48:00 :::HCHP ...9...
creates a doubt about the presence of PW-3 at the spot. Absence of .
his name in the earlier information i.e. Ext.PA would also strengthen this finding that Investigating Officer introduced him as a spot witness after due deliberation. PW-3 specifically stated that he was present with his wife and he was just 2-3 feet behind her.
(g) The presence of PW-2 Sunil Kumar at the spot is also doubtful because of another contradiction in the prosecution case.
Although PW-2 claimed to be present at the spot but to the contrary his father PW-3 Ranjeet Singh stated during his cross-examination that he had gone to meet his would be sister-in-law, who was standing near Amartex. As per this statement deceased was with her husband PW-3 and not with Sunil Kumar. Now, it emerges that none of these person was present at the spot. The case of the prosecution is that both of them were present at the spot. It cannot be said with certainty that who was present at the spot and who had seen the occurrence.
Reliance cannot be placed on statement of any of these witnesses regarding witnessing the occurrence.
(h) It is quite possible that PW-2 and PW-3 were in the vicinity. On hearing the cries, they realised that it is their family member, who has met with an accident.
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(i) Another prosecution witness of the spot is PW-5 Pradeep .
Kumar. Initially he did not support the case of the prosecution and was declared hostile and when the leading question put to him then he admitted that at the time of accident one motorcyclist had crossed them but he stated that he was present near Amertex. He specifically stated that some ladies were crossing the road and motorcyclist had applied brakes from a considerable distance. He admits that due to the impact of hitting by the bike, the lady had fallen down. He further states that she was immediately taken to the hospital. He had accompanied the injured to the hospital and according to this witness she had succumbed to the injuries after one hour.
(j) PW-5, the independent spot witness, says that the bike dragged for 3-5 feet after hitting the lady. Now, the two wheeler, even if moving at a slow speed, would fall due to inertia. If the speed of the bike would have been high it would have been dragged much more.
The length of the motrocycle is more than four feet. In cross-
examination this witness clarifies that motorcycle had dragged 3-4 feet and it was not skidded, so the dragging was even less than the total length of the motor cycle.
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(k) Initial burden is on the prosecution to prove is that the .
cause of death is not natural but due to accident. To prove this fact, the prosecution examined Dr.S.K.Soni, Medical Officer, Hamirpur, who appeared as PW-6. He had conducted the postmortem examination of the deceased and testified that cause of death is due to the accident.
He further says that the victim died due to head injury with fracture of occipital bone with intra cranial (subdural and subarachnoid) hemorrhage bleeding to shock and death. Therefore, the prosecution was able to prove that this lady had died due to impact of hit by motorcycle.
11. The reasoning given by the learned trial Court for conviction is as follows:-
"His testimony that the accused was driving the motorcycle with the speed of 60-70 kilometers per hour would show that the speed of the motor cycle was quite high. The Central Government has specified the speed of the motor vehicle in exercise of the power conferred by Section 112(1) of the motor vehicles act. The maximum speed of the motor cycle has been specified as 50 kilometers per hour. Therefore, the speed of 60- 70 kilometers per hour would definitely be quite high. A perusal of the site plan as well as the photographs Ex.P-::: Downloaded on - 28/09/2019 23:48:00 :::HCHP
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3 to Ex.P-5 would show that the place of accident is having many shops. Therefore, it was expected from .
the accused that he would drive the motor cycle with a care and caution and with slow speed keeping in view of the fact that many persons frequent with road. The failure to do so was the proximate cause of the accident and hence he was quite negligent."
12. The learned trial Court holds that the motorcyclist was driving the bike in high speed and he concludes that the motorcyclist was driving in excess of the speed limit. Therefore, he was rash and negligent.
13. If the violation of the speed limit would be violation of Section 112 of the Motor Vehicles Act, which is a strict liability and fine can be imposed. Simply because the speed is more than prescribed limit therefore it automatically becomes the act of rash and negligent, cannot be true.
14. Learned Judge specifies that the maximum speed limit is prescribed as 50 kilometer per hour. To conclude this fact, the learned Judge relies only on the improvised version of PW-2, the informant, who initially did not mention speed limit at the time of recording of his statement and made this material improvement at the time of ::: Downloaded on - 28/09/2019 23:48:00 :::HCHP ...13...
recording his statement before the trial Court and that too in cross-
.
examination.
15. Another reason for holding the accused guilty by the learned trial Court is that it did not believe those portion of statement of PW-5, which was in favour of accused. The learned trial Court made an observation that the statement of PW-5 regarding skid marks is incorrect and did not rely upon his entire statement. The learned trial Court forget to remember that the latin phrase falsus in uno falsus in omnibus, is not applicable in India.
16. The learned Sessions Judge was right in setting aside the judgement of the learned trial Court wherein Sessions Judge has discussed the relevant evidence in detail and it is a very well reasoned judgement.
17. The most material contradiction is that at the time of lodging of F.I.R. PW-2 stated that he alongwith his mother was walking on the road near Amartex whereas on oath before the learned trial Court he stated that his mother and father were going ahead of him.
18. Therefore, overall reading of the entire evidence and keeping in view the material contradictions that have erupt in the prosecution evidence, the prosecution has failed to prove its case.
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The prosecution could not prove that the accused was driving on .
public way in a rash or negligent manner so as to endanger human life. The prosecution has further failed to prove that the accident took place because of rash or negligent driving of the accused.
19. In view of the above discussion, I find that there is no merit in the appeal and hence the same is dismissed, so also pending applications, if any. The judgement rendered by the learned Sessions Judge, Hamirpur, in Criminal Appeal No. 11 of 2008 is affirmed.
20. Bail bonds furnished by the accused are discharged.
Records of the Court below be sent back.
(Anoop Chitkara)
24th June, 2019(TM) Judge.
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