Himachal Pradesh High Court
State Of Himachal Pradesh vs Downloaded On - 04/10/2022 20:01:13 ... on 30 September, 2022
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF SEPTEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SUSHIL KUKREJA
.
CRIMINAL APPEAL NO.418 OF 2010
Between:-
STATE OF HIMACHAL PRADESH.
......APPELLANT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
HANS RAJ, SON OF BUDHI SINGH,
VILLAGE CHOWKI, P.O. TAL, TEHSIL,
POLICE
STATION & DISTRICT
HAMIRPUR, H.P.
......ACCUSED/RESPONDENT
(BY MR. NARESH KAUL, ADVOCATE)
RESERVED ON :15.09.2022
DECIDED ON : 30th SEPTEMBER, 2022
This appeal coming on for orders this day, Hon'ble Mr.
Justice Sushil Kukreja, passed the following:-
JUDGMENT
By way of instant criminal appeal filed under Section 378 Cr.PC, challenge has been laid to judgment of acquittal dated 11.05.2010, passed by learned Judicial Magistrate, 1st Class, Court No.III, Hamirpur, H.P. in Police Challan No. 30-1-2007/64-II-2007, titled Hans Raj vs. ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 2 State of H.P. whereby learned court below held respondent/accused (hereinafter referred to as 'accused') not guilty of having committed offence punishable under Sections 279, 337 & 338 of IPC read with Section 185 of .
the Motor Vehicle Act and accordingly acquitted him.
2. In nutshell, the case of the prosecution is that on 10.4.2007 at about 8.55 P.M., Vipan Sharma, Proprietor of 'Swagatam, Gandhi Chowk, Hamirpur made a telephonic call at Police Station, Hamirpur informing that a Fire Brigade vehicle bearing No. HP-22-0341 had struck against so many vehicles. On receiving such information, ASI Guler Chand along with other police officials went to the spot where complainant, Rishu Puri, got his statement recorded under Section 154 Cr.P.C him, alleging therein that he is a shopkeeper of confectionery near Gandhi Chowk and on 10.04.2007, at about 8.45 p.m., a Fire Brigade vehicle bearing registration No HP-22-0341 (red in colour) being driven by its driver, i.e. present accused, in a rash and negligent manner, struck against so many vehicles, i.e. Scooters bearing registration Nos. HP-22-4219 & HP-22-5438, Scorpio No. HP-55B-0555, Car No. HP-24-0920, Motorcycle No. HP-22A-
1676, Scooter No. HP-21-1502, Motorcycle No. HP-22-6979, Car No. HP-
34A-0081. Motorcycle A/F and Motorcycle No HP-22-0211, vehicle Nos.
HP-22-5158, HP-22A-0492 HP-22-3859, HP-22A-1353 and HP-22-5438.
On the basis of aforesaid statement made by the complainant, FIR under Sections 279 & 337 of IPC was registered against the present accused Hans Raj and thereafter investigation was conducted. After completion of ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 3 the investigation police presented the challan against the accused in the competent court of law for the commission of offences punishable under Sections 279, 337 & 338 of IPC read with Section 185 of the Motor .
Vehicles Act. Learned court below having found prima facie case against the accused, put to him Notice of Accusation under Sections 279, 337 and 338 of IPC read with Section 185 of the Motor Vehicles Act, to which he pleaded not guilty and claimed trial.
3. Prosecution with a view to prove its case, examined as many as thirty one witnesses, whereas, accused in his statement recorded under Section 313 Cr.P.C, claimed himself to be innocent, but despite opportunity did not lead evidence in his defence.
4. Learned court below, on the basis of evidence collected on record by the prosecution, held accused not guilty of having committed offence punishable under Sections 279, 337 and 338 of IPC read with Section 185 of the Motor Vehicle Act and accordingly acquitted him vide impugned judgment of acquittal dated 11.05.2010. In the aforesaid background, appellant/State has approached this Court in the instant appeal, praying therein for conviction of the accused after setting aside the judgment of acquittal recorded by court below.
5. Having heard learned counsel for the parties and after perusing the material available on record vis-a-vis reasoning assigned in the impugned judgment of acquittal recorded by court below, this court is not persuaded to agree with Mr. Kunal Thakur, learned Deputy Advocate ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 4 General that the court below has failed to appreciate the evidence in right perspective, as a consequence of which, erroneous findings contrary to the record has come on record, rather after having carefully perused evidence .
led on record by prosecution, this Court has no hesitation to conclude that the prosecution has miserably failed to prove beyond reasonable doubt that on the date of alleged incident, aforesaid vehicle was being driven by the accused in a rash and negligent manner.
6. At the very outset, it needs to be observed that the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal as an order of acquittal adds up to the presumption of innocence in favour of the accused. In Dhanapal vs. State By Public Prosecutor, Madras, (2009) 10 SCC 401, the Hon'ble Apex Court has held that the presumption of innocence of the accused is strengthened by the judgment of acquittal passed by the trial court. The relevant portion of the aforesaid judgment reads as under: -
"25. The same principle has been followed in Atley v. State of U.P. AIR 1955 SC 807 (at pp. 809-10 para 5), wherein the Court said:
"5. ...It has been laid down by this Court that it is open to the High Court on an appeal against an order of ac-
quittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-es- tablished rule that the presumption of innocence of the accused is not weakened but strengthened by the judg- ment of acquittal passed by the trial court Thus, the Ap- pellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Which had the advantage of observing the demeanor of witnesses whose evidence have been recorded in its presence.::: Downloaded on - 04/10/2022 20:01:13 :::CIS 5
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused .
person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."
7. In N.Vijaykumar vs State of Tamil Nadu, (2021) 3 Supreme Court Cases 687, the Hon'ble Apex Court has held that in case of acquit-
tal, there is double presumption in favour of the accused. Firstly, the pre-
passed by the trial court.
sumption of innocence is available to him and secondly, the presumption of his innocence is further strengthened by the judgment of his acquittal The relevant portion of the judgment reads as follows: -
"20. ......... By considering the long line of earlier cases this Court in the judgment in the case of Chan- drappa & Ors. v. State of Karnataka (2007) 4 SCC 415 has laid down the general principles regarding the pow-
ers of the appellate court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge :-
(1) (1) to (3) xxx xxx xxx
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption in ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 6 favour of the accused. Firstly, the presumption of inno- cence is available to him under the fundamental principle of criminal jurisprudence that every person shall be pre- sumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having .
secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
8. In Jafarudheen & Ors. vs State of Kerala, 2022 LiveLaw (SC) 403, the Hon'ble Apex Court has held that the presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. The relevant portion of the judgment reads as under: -
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
9. Therefore, the instant appeal has to be decided in view of the aforesaid settled legal preposition. The allegations against the accused is that he was driving a Fire Brigade vehicle bearing No. HP-22-0341 in a rash and negligent manner in a public place due to which, it struck against 15 vehicles and also caused simple and grievous injuries to one person, ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 7 namely, Munish Rana.
10. It is not in dispute that accused was driving the vehicle in question at the relevant time, as he himself had admitted in his statement .
under Section 313 Cr.P.C, but he denied that he was driving the same in a rash and negligen manner. The defence of the accued is that he could not apply the brakes due to leakage of air pressure, as a result of which, accident had taken place.
11. In the present case, prosecution has examined as many as thirty one witnesses. PW-1, Ashok Kumar, PW-2, Sukh Dev pleaded their ignorance about the driver of the offending vehicle in question at the time of accident. Though, PW-4, Nand Lal, stated that accident took place due to fault of the driver, however, in his cross-examination, it is revealed by him that he was not present at the spot at the time of accident and he had been called to the spot later on. PW-7, Arvind Kumar also pleaded ignorance in his cross-examination about the cause of the accident.
Though PW-15, Vipin Sharma stated that he saw a Fire Brigade vehicle bearing No. HP-22-0341 having hit and the same was being driven negligently by its driver, however, in his cross-examination, he admitted that accident had already taken place when he had come from his shop.
Therefore, no benefit could be derived by the prosecution from the statement of aforesaid witnesses. Learned trial court has rightly observed that most of the witnesses those have been examined by the prosecution were the owners of the vehicles that had been damaged as a result of the ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 8 accident and were not present at the time of the accident in question.
12. PW-14, Ramesh Chand, is the most material witness, who had stated that he had mechanially examined the Fire Brigade Water .
Tanker bearing No. HP-22-0341 and submitted his report Ext.PW-14/A. In his cross-examination, he stated that at the time of examination, the brake air pressure of the vehicle in question was nil. He had also explained that offending vehicle was having hydraulic assistant air brake system and in this system, if the air pressure is nil or less than, the brake cannot work.
13. Thus from the perusal of the entire evidence on record, it has become clear that the vehicle was having hydraulic assistant air brake system and the brake air pressure of the vehicle was nil at the time of the accident and in this system, if the brake air pressure is nil, then the brake does not respond. Therefore, it has become clear that the accident took place as the brake system did not respond, as such, it cannot be said that the accused was rash and negligent in driving the vehicle. Hence, no interference is called for in the judgment dated 11.05.2010, passed by learned Judicial Magistrate, 1st Class, Court No.III, Hamirpur, H.P., in as much as, accused came to be acquitted of charges framed against him under Sections 279, 337 & 338 of IPC read with Section 185 of the Motor Vehicles Act, which otherwise appears to be based upon proper appreciation of the evidence adduced on record and accordingly, the same is upheld.
14. The State has failed to point out any irregularity or illegality ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 9 much less perversity in the judgment of the acquittal passed by the learned Trial Court, as such, there is no merit in this appeal and the same is accordingly dismissed. The bail bonds, if any, furnished by the accused are .
discharged. Record of the learned Trial Court be sent back.
( Sushil Kukreja ) Judge 30th September, 2022 (reena) ::: Downloaded on - 04/10/2022 20:01:13 :::CIS 10 .
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