Himachal Pradesh High Court
Diwan Chand vs State Of Himachal Pradesh on 22 December, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. R No. 164 of 2011
.
Decided on : 22.12.2016
Diwan Chand .....Petitioner.
Versus
State of Himachal Pradesh ....Respondent.
of
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. N.S Chandel, Advocate.
For the Respondent-State: Mr. Vivek Singh Attri, Deputy
Advocate General.
Sureshwar Thakur, J (oral)
The instant revision petition stands directed against the judgment of 28.5.2011 rendered by the learned Sessions Judge, Shimla in Cr. Appeal No. 63-S/10 of 2008, whereby he affirmed the findings of conviction recorded against the Revisionist (for short "the accused") by the learned C.J.M Shimla on 30.9.2008 in criminal case No. 62/2 of 06/02.
2. The brief facts of the case are that PW-2 Nakshter Singh and PW-1 Tarsem Singh had been working as driver and 1 Whether reporters of the local papers may be allowed to see the judgment?
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conductor, respectively in Punjab Roadways Jalandhar Depot.
.
On 31.7.2002, PWs aforesaid had been detailed on duty on bus bearing No. PB-12C-9620 catering to Shimla-Jalandhar route.
There were 10-15 passengers in the bus. When the bus had of crossed Tara Devi and had been at a distance of about 200 meters towards Shoghi at about 6.45 a.m. truck bearing registration No. rt HP-11/1781 was noticed coming from the opposite direction. The accused had been on the wheel of the truck. He had been driving rashly and negligently and had even crossed the mid line.
Finding the truck coming on wrong side from opposite direction, PW-2 had slowed down and had taken the bus to extreme left side. The accused had not been able to control the truck and had struck against front right side of the bus. As a result of the impact of the truck, one passenger Sh. Putani Lal Gupta of the bus had fallen down and had suffered fatal injuries. Some other passengers had also suffered multiple injuries. The police stood informed about the accident. After completing all codal formalities and on conclusion of the investigation into the ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...3...
offence, allegedly committed by the accused, the Investigating .
Officer prepared challan and filed the same in the Court.
3. The accused stood charged by the learned trial Court for his committing offence(s) punishable under Sections 279, 337, of 304-A and 338 of I.P.C, to which he pleaded not guilty and claimed trial.
4. rt In order to prove its case, the prosecution examined 13 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. However, he did not choose to lead any evidence in his defence.
5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction upon the accused.
The learned Appellate Court in affirmation to the judgment of the learned trial Court also convicted the accused.
6. The learned counsel for the accused/revisionist has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court, findings ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...4...
whereof stood affirmed by the learned Appellate Court, .
standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-
appreciation of material on record. Hence, he contends qua of the findings of conviction being reversed by this Court in the exercise of its revisional jurisdiction and theirs being replaced rt by findings of acquittal.
7. The learned Deputy Advocate General for the respondent-State has with considerable force and vigor contended qua the concurrent findings of conviction recorded upon the accused by both the Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication.
8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record.
9. In sequel to a collision which occurred inter-se the vehicle bearing Number HP-11-1781 driven by the accused vis-à-
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vis the bus bearing No. PB-12C-9620, a passenger occupying the .
bus aforesaid suffered demise. The apposite post mortem report borne on Ex. PW-9/C unveils qua the demise of one Putani Lal Gupta ensuing from hemorrhagic shock in sequel to multiple of injuries as stood entailed upon his body. PW-9 in his deposition held in his examination-in-chief underscores therein qua 4-8 rt hours elapsing since the begetting of the fatal injury noticed by him on his subjecting the deceased aforesaid to post mortem examination wherefrom the prosecution attains success qua its propagation qua the deceased suffering his demise in sequel to injuries standing entailed upon his person at the relevant time whereat a collision occurred inter-se the vehicle driven by the accused vis-à-vis the bus occupied by the deceased.
10. Also the prosecution in sustaining the charge against the accused had depended upon the testimonies of ocular witnesses to the occurrence who testified as PW-1 and PW-2 before the learned Magistrate. Since the testifications of both the aforesaid PWs who therein unveil a credible ocular account qua the occurrence stand un-ingrained with any gross or stark ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...6...
contradictions occurring in their respective testifications held in .
their respective examinations-in-chief vis-à-vis the communications respectively made by them in their respective cross-examinations, as also when their respective testifications of qua the ill-fated occurrence are bereft of any taint of any fatal intra-se contradictions thereupon also the prosecution attains rt success in proving the charge against the accused.
11. The learned Sessions Judge had discarded the efficacy of the apposite testification of PW-6 who in sequel to his holding the apposite vehicle driven by the accused to a thorough mechanical examination prepared Ex. PW-6/A wherein he voiced qua there being a possibility of the offending vehicle prior to the occurrence begetting locking of its steering whereupon the defence had concerted to attribute the relevant collision inter-se the relevant vehicles to stand aroused from the aforesaid mechanical defect preceding the ill-fated occurrence erupting therein on the trite reason qua with the accused for obviating the relevant collision/accident holding the apposite capacity to apply the brakes of the apposite vehicle, whereas his not applying the ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...7...
brakes of the offending vehicle hence generating an inference qua .
with the accused evidently plying his vehicle on the inappropriate side of the road, his, thereupon evidently holding the necessary mens rea of deviating from the standards of due of care and caution. Also the learned Sessions Judge did not impute any apt gravity to the factum of the steering wheel of the vehicle rt driven by the accused standing pronounced in the testification of PW-6 to beget locking nor he imputed any gravity to the factum articulated by PW-6 qua even the brakes besides the clutches of the offending vehicle standing locked whereupon obviously the accused stood precluded to for thwarting the relevant collision apply the brakes of the offending vehicle nor obviously the assignment of a reason by the learned Sessions Judge qua the relevant collision being obviable by application of brakes of the offending vehicle by the accused whereas the accused not applying brakes of the offending vehicle evidently thereupon his holding a penally inculpable mens rea of negligence, whereupon the verdict impugned hereat recorded by the learned Sessions Judge would for reasons ascribed hereinafter suffer reversal.
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12. Visibly as consistently deposed by the ocular .
witnesses besides as unraveled by the site plan, the truck driven by the accused wantonly wandered astray from the appropriate side of the road whereat a collision occurred inter-se the vehicle of driven by the accused vis-à-vis the bus. However PW-6 in his testification borne in his examination-in-chief communicates rt therein qua on his examining the truck driven by the accused, his noticing qua its brake, clutch and steering all standing locked obviously reiteratedly thereupon the reason assigned by the learned Sessions Judge qua the accident which occurred inter-se the truck driven by the accused vis-à-vis the bus being obviable by application by the accused of the brakes of the offending vehicle falters. Despite this Court dispelling the vigour aforesaid of the reason assigned by the learned Sessions Judge for disimputing credence to the espousal of the defence, would not beget any inference from this Court qua with the vehicle driven by the accused evidently wandering astray from the appropriate portion of the road thereupon the aforestated evident factum yet also not constituting any firm evidence against the accused qua ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...9...
his holding the penally inculpable mens rea of negligently .
driving his vehicle. Moreso when credible un-tainted ocular testifications of eye witnesses to the occurrence make open and candid communications therein qua the accused negligently of driving his vehicle at the relevant site of occurrence.
13. Nowat, the factum of the accused intentionally rt negotiating his vehicle to the inappropriate site of the road or his standing disabled by eruption of a sudden mechanical defect in the offending vehicle to maneuver it to the appropriate portion of the road warrants pronouncement of a just adjudication, whereupon the efficacy of the testification occurring in the examination-in-chief of PW-6 who therein proved his mechanical report borne on Ex.PW-6/A warrants allusion. PW-6 in his examination-in-chief has with lack of firmness besides with stark want of formidability echoed therein qua the locking of the steering of the vehicle occurring prior to the accident or in contemporanity vis-à-vis it or subsequent thereto. His aforesaid nebulous testification qua the aforesaid trite factum occurring in his examination-in-chief does groom a lingering doubt qua the ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...10...
relevant sudden mechanical defect(s) aforesaid noticed by him in .
the offending vehicle arising prior to the accident or in contemporanity therewith or subsequent thereto, whereupon an inference stands sustained qua the inability of the accused to of maneuver his vehicle to the appropriate side of the road standing spurred by prior to the ill-fated collision which occurred inter-se rt the vehicle driven by the accused vis-à-vis the bus aforesaid, the offending vehicle driven by the accused suddenly developing a mechanical defect qua its brakes, clutch and steering standing locked. The vagueness qua the aforesaid relevant factum probandum propounded by PW-6 in his testification occurring in his examination-in-chief does hold immense leverage to purvey this Court strength to conclude qua PW-6 not firmly with an unshaken commitment displaying nor negating qua the relevant defects noticed by him to occur in the relevant offending vehicle which stood inspected by him not occurring prior to the occurrence wherefrom the aforesaid factum probandum whereupon the accused rests his defence stands shrouded in deep doubt, benefit whereof ought to be meted to the accused.
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14. In aftermath, the occupation of the inappropriate side .
of the road by the vehicle driven by the accused stood generated by eruption therein of the aforesaid mechanical defect, eruption whereof thereon occurred prior to the ill-fated collision whereby of his inability to maneuver his vehicle to the appropriate side of the road cannot engender any inference qua the accused holding any rt penally inculpable mens rea of negligence also thereupon it is befitting to conclude qua the defence succeeding in infecting the prosecution story with a pervasive aura of doubt also thereupon the prosecution has unveiled its inability to firmly negate the efficacy of the aforesaid defence reared in exculpation of the guilt of the accused.
15. The learned Deputy Advocate General has with utmost vigour and vehemence contended before this Court qua the aforesaid lingering doubt generated by PW-6 echoing in his examination-in-chief qua the relevant defects erupting in the vehicle prior to the accident standing evaporated by the factum of photographs existing on record with a disclosure therein qua the tyres of the vehicle standing tilted towards the appropriate ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...12...
side of the road whereupon the occurrence of mechanical defects .
thereon as noticed by PW-6 on his examining the offending vehicle driven by the accused being ascribable to their eruption therein occurring subsequent to the mishap whereupon he of contends qua the prosecution succeeding in proving the charge against the accused. He contends with force qua the aforesaid rt espousal holding absolute tandem with the credible depositions of the ocular witnesses, thereupon any leverage as concerted to be derived by the learned counsel for the accused upon the apposite doubt un-raveled in the examination-in-chief of PW-6 standing stripped of its merit besides legal worth.
16. The learned Deputy Advocate General while making the aforesaid submission before this Court, has not borne in mind the trite tenet of criminal jurisprudence qua the prosecution standing enjoined with a solemn obligation to prove the charge against the accused. In discharge of the aforesaid onus, though the prosecution led PW-6 into the witness box, yet the learned A.P.P. while holding him to examination-in-chief though therein had unearthed from him echoings displaying a lingering doubt ::: Downloaded on - 15/04/2017 21:47:51 :::HCHP ...13...
qua the locking of the steering of the vehicle driven by the .
accused occurring prior to the accident whereupon this Court stands prodded to conclude qua hence it precluding the accused to even when the bus driven by the PW-2 occupied the apposite of site of occurrence, to maneuver the offending vehicle to the appropriate side of the road, yet the learned A.P.P. concerned rt while eliciting the aforesaid echoings from PW-6 while holding him to examination-in-chief has hence throttled the prosecution case, rather he has given immense sinew to the espousal of the defence qua the accident which occurred at the relevant side of occurrence being unavoidable significantly with the steering of the vehicle standing prior to the mishap entailed with a sudden defect of its standing locked. Moreover, when the benefit of the aforesaid lingering doubt qua the relevant eruption in the offending vehicle of defects, defects whereof stand articulated by PW-6 to may be arise therein prior to the collision has to be accorded to the accused. Conspicuously the learned P.P. concerned while eliciting the aforesaid relevant doubt from PW-6 qua the factum probandum while holding him to examination-in-
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chief did not proceed to seek any clarification from PW-6 qua the .
locking of the steering of the vehicle besides the locking of its brake besides clutch erupting subsequent to the occurrence or in contemporanity vis-à-vis it whereupon his omission in the of aforesaid regard gives redoubled fervor to the doubt qua the relevant facet echoed by PW-6 in his examination-in-chief rt thereupon the benefit of the relevant doubt has to stand afforded to the accused.
17. The existence of any display in photographs qua the wheel of the truck tilting towards the appropriate side of the road whereupon the learned Deputy Advocate General contends qua with prior to the accident no mechanical defect standing spelt out in PW-6/A to occur in the offending vehicle also does not impute any tenacity to the relevant testifications embodied in the examination-in-chief of PW-6 rather hence relieves the lingering doubt qua the factum probandum grooved in the examination-in-
chief of PW-6 nor also the testification occurring in the examination-in-chief of PW-6 qua the eruption of mechanical defect(s) pronounced in PW-6/A to stand on the inspection of ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP ...15...
the relevant vehicle noticed thereon by him to may be arise .
thereon prior to the accident taking place inter se the vehicle driven by the accused vis-à-vis the bus occupied by the deceased holds any tenacity. However when the photographs of the truck of making the aforesaid disclosure for hence thereupon theirs succoring the propagation of the prosecution stood not shown to rt PW-6 by the APP concerned during the course of his holding him to examination-in-chief nor they stood shown to him subsequently on his standing granted the apposite permission by the learned trial Court whereas only when the learned A.P.P confronted PW-6 with the relevant photographs holding the aforesaid display, he would hence have evinced a firm opinion from PW-6, an expert, qua the display in the photographs of the tyres of the relevant vehicle tilting towards the appropriate side of the road facilitating hence an inference of the relevant mechanical defect(s) occurring subsequent to the occurrence not prior thereto, whereas with PW-6 evidently remaining unconfronted with the relevant photographs wherewithin the aforesaid display occurs, does constrain this Court to ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP ...16...
discountenance the submission of the learned Deputy Advocate .
General also his submission qua this Court in the manner espoused by him read the photographs of the truck holds no legal worth, significantly when there is no provision in the Evidence of Act for this Court excepting the one engrafted in Section 73 of the Indian Evidence Act to analyse the testimony of PW-6 an expert rt vis-à-vis photographs whereupon no opinion stood elicited from him also when the realm of or the domain of the aforesaid relevant analysis falls squarely within the ambit of the apposite skills besides the expertise possessed solitarily by the expert(s) concerned, expertise whereof standing not possessed either by the learned Deputy Advocate General or by this Court reiteratedly renders both incapacitated to pronounce any opinion thereon.
18. The summom bonum of the above discussion is that the credible testification(s) of the ocular witnesses to the occurrence for the reasons aforestated suffering erosion also when with this Court erecting an inference for reasons aforestated qua the relevant defects in the vehicle driven by the ::: Downloaded on - 15/04/2017 21:47:52 :::HCHP ...17...
accused occurring therein prior to the accident, thereupon a firm .
conclusion stands generated from this Court qua the occupation of the appropriate site of the road by the vehicle driven by the accused standing reared by the aforesaid sudden eruption of of defects in the apposite vehicle also when PW-1 in his cross-
examination acquiesces to the suggestion qua the accident being rt obviable if the driver applying the brakes of the bus does also hence exculpate the guilt of the accused.
19. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned Court below suffers from perversity and absurdity or it can be said that the learned Court below in recording findings of conviction have committed a grave legal misdemeanor, in as much, as, theirs mis-appreciating the evidence on record or theirs omitting to appreciate the relevant and admissible evidence. In aftermath this Court deems it fit and appropriate that the findings of conviction recorded by the learned Courts below merit interference.
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20. In view of above, the present petition is accepted.
.
The impugned judgment(s) are quashed and set aside. The accused is acquitted of the offences charged. Fine amount, if any, deposited by the accused be refunded to him. Pending of applications stand disposed of accordingly. Personal and surety bonds if furnished by the accused be cancelled. Records be sent back.
rt
22nd December, 2016 ( Sureshwar Thakur ),
(priti) Judge.
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