Himachal Pradesh High Court
State Of Himachal Pradesh vs Sanjay Dahiya on 17 April, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Appeal No.426 of 2010
Date of Decision : 17.04.2018
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State of Himachal Pradesh ....Appellant
Versus
Sanjay Dahiya ....Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Mr. Vikrant Chandel, Deputy Advocate
General.
For the Respondent : Mr. Anand Sharma, Advocate with
Mr.Karan Sharma, Advocate.
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Sandeep Sharma, Judge (Oral)
Instant Criminal Appeal is directed against the judgment of acquittal dated 23.4.2010, passed by learned Sessions Judge, Kullu, District Kullu, H.P., in Criminal Appeal No. 4 of 2008, whereby the judgment of conviction and sentence, dated 24.3.2008/27.3.2008, passed by the learned Judicial Magistrate 1st Class, Manali, District Kullu, H.P., in Criminal case No.102-I/2007 & 36-II/2007, has been set-aside.
2. Facts, as emerge from the record are that on 17.02.2007, at about 10:30 PM, a telephonic message was received at police Station, Manali that a Maruti car bearing registration Whether reporters of the local papers may be allowed to see the judgment ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...2...
No.DL-1CC-6169 met with an accident at a place called Ranghri and two persons, in an injured conditions, were trapped in the .
same. On the basis of aforesaid information, ASI Lal Chand (PW-7), alongwith other police Officials, reached at the spot and pulled out two persons lying trapped in the vehicle, whereafter they were taken to Mission Hospital, Manali. According to prosecution story, the police lateron came to know that accused Sanjay Dahiya was driving the car, whereas another occupant namely Bhopinder Singh was second person sitting in the vehicle. Since, it was raining on 17th February, 2007, spot was inspected by the police on the next day i.e.18th February, 2007. During spot inspection, police found that there were 30 feet long skid marks of the vehicle at the spot.
During investigation, police arrived at a conclusion that alleged accident occurred due to rash and negligent driving by the accused, who at that relevant time was driving the vehicle under the influence of liquor. On the basis of aforesaid investigation, formal FIR Ex. PW1/B came to be registered against the accused. After completion of the investigation, police presented the challan in the competent court of law i.e. Judicial Magistrate 1st class, Manali, District Kullu, Himachal Pradesh.
3. The learned trial Court after satisfying itself that a prima-facie case exists against the accused, put notice of accusation to him under Sections 279, 338 and 304-A of IPC and Section 185 of the Motor Vehicles Act, to which he pleaded not ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...3...
guilty and claimed trial. It may be noticed that another occupant of the vehicle namely Sh. Bhopinder Singh, who remained admitted in .
Mission Hospital, Manali, succumbed to his injuries after three days of the unfortunate accident and as such, Section 304-A of IPC came to be inserted in the FIR, mentioned hereinabove.
4. Learned trial Court vide judgment dated 24.3.2008, held the respondent/accused guilty of having committed the offences punishable under Sections 279, 338 and 304-A of IPC, and accordingly convicted and sentenced him as under:-
1. To undergo simple imprisonment for a period of r three months and to pay fine of Rs.500/- and in default of payment of fine, to further undergo simple imprisonment for a period of one month under Section 279 of IPC;
2. To undergo simple imprisonment for a period of six months and to pay fine of Rs. 500/- and in default of payment of fine, to further undergo simple imprisonment for a period of one month under Section 338 of IPC;
3. To undergo simple imprisonment for a period of one year and to pay fine of Rs. 2000/- and in default of payment of fine, to further undergo simple imprisonment for a period of one month under Section 304-A of IPC;
Vide aforesaid judgment learned trial Court acquitted the accused of notice of accusation put to him for having ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...4...
committed the offence punishable under Section 185 of the Motor Vehicles Act.
.
5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, respondent/accused preferred an appeal in the Court of learned Sessions Judge, Kullu, which came to be registered as Criminal Appeal No.4 of 2008, however fact remains that appeal having been preferred by the respondent/accused was allowed, as a consequence of which, judgment of conviction and sentence recorded by the learned trial Court came to be set-aside. In the aforesaid background, appellant-State, has approached this Court by way of instant proceedings, praying therein for restoration of the judgment passed by the learned trial Court, after setting aside the judgment of acquittal recorded by the learned First Appellate Court.
6. Mr. Vikrant Chandel, learned Deputy Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by learned First Appellate Court, contended that same is not sustainable in the eye of law because same is not based upon the proper appreciation of the evidence and as such, same deserve to be quashed and set-aside. Mr. Chandel, while referring to the evidence led on record by the prosecution to prove its case, strenuously argued that the prosecution proved its case beyond reasonable doubt that on the alleged date of incident, accused was driving the vehicle rashly and negligently under the ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...5...
influence of liquor, as a consequence of which, another occupant of the vehicle namely Bhopinder Singh lost his life and as such, .
learned trial court rightly held him guilty of having committed the offences punishable under Sections 279, 338 and 304-A of IPC. He further contended that there is no illegality and infirmity in the judgment of the conviction recorded by the learned trial Court. Mr. Chandel, while making this Court to travel through the impugned judgment of acquittal recorded by learned First Appellate Court, strenuously argued that learned First Appellate Court, has miserably failed to appreciate the evidence in its right perspective, as a consequence of which, erroneous findings have come on record and the accused has been let of on very flimsy grounds.
7. While referring to the statement of Devender (PW-8) i.e. so called independent witness, Mr. Chandel, contended that though this witness was declared hostile, but it has specifically come in his statement that at the time of the accident, vehicle in question was being driven by the accused and as such, findings to the contrary recorded by the learned First Appellate Court is not sustainable.
While referring to the statement of PW-7(Investigating Officer), Mr. Chandel, also contended that it has also come in the statement of this witness that accused Sanjay Dahiya was driving the vehicle at that relevant time and as such, learned First Appellate Court has fallen in grave error while concluding that the prosecution has not been able to prove that at the time of the alleged accident, ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...6...
respondent/accused was driving the vehicle. Lastly, Mr. Chandel, while placing reliance upon the spot map Ex.7/B, contended that .
30 feet skid marks were observed by the Investigating Officer at the time of spot inspection, which itself suggests that vehicle at that relevant time was being driven by the respondent/accused rashly and negligently and as such, findings to the contrary recorded by the learned First Appellate Court is not sustainable.
8. Mr. Karan Sharma, learned counsel representing the respondent-accused, while supporting the impugned judgment of acquittal, contended that same is based upon the correct appreciation of the evidence and as such, same needs to be upheld.
While refuting the aforesaid submissions having been made by learned Deputy Advocate General, Mr. Sharma, strenuously argued that bare perusal of the impugned judgment of acquittal recorded by the learned First Appellate Court, suggest that learned First Appellate Court has dealt with each and every aspect of the of the matter very meticulously and there is no scope of interference as far as this Court is concerned. With a view to substantiate his aforesaid argument, Mr. Sharma, made this Court to travel through the entire evidence led on record by the prosecution, to demonstrate that none of the prosecution witnesses categorically stated something specific with regard to rash and negligent driving, if any, by the respondent/accused. He further contended that none of the prosecution witness has categorically stated that respondent-
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accused was driving the vehicle in question at that relevant time and as such, learned First Appellate Court, rightly came to the .
conclusion that prosecution was not able to prove beyond reasonable doubt that vehicle in question was being driven by the respondent-accused at that relevant time.
9. Mr. Sharma, further contended that as per own statement of PW-7 i.e. Investigating Officer, spot was inspected on the next day, which action on the part of the investigating Officer itself create doubt with regard to the correctness of the spot map and as such, learned First Appellate Court rightly not placed reliance upon the same. He further contended that there is no illegality and infirmity in the findings returned by the learned court below with regard to consumption, if any, of liquor by the respondent/accused at the time of alleged accident. Mr. Sharma, contended that otherwise also, learned trial court had acquitted the respondent/ accused under Section 185 of the Motor Vehicles Act, while holding him guilty of having committed the offence punishable under Sections 279, 338 and 304-A of IPC and that finding was never assailed by the appellant-State in the appeal preferred before the learned First Appellate Court and as such, appellant-State cannot be allowed to raise this plea in the instant proceedings. Learned counsel representing the respondent-accused has placed reliance upon the judgment passed by this Court in case ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...8...
titled as State of H.P. versus Ashok Kumar; 2018(Suppl.) Him.
L.R.3055.
.
10. Having heard the learned counsel representing the parties and gone through the evidence led on record, this Court finds considerable force in the argument of learned counsel representing the respondent-accused that prosecution was not able to prove beyond reasonable doubt that at the time of the alleged accident, vehicle in question was being driven rashly and negligently by the accused. Admittedly, careful perusal of the evidence adduced on record by the prosecution, nowhere suggest that the prosecution was able to prove that at the time of alleged accident, vehicle in question was actually being driven by the respondent/accused, Sanjay Dahiya, who as per prosecution story was in hurry to catch the bus from Manali to Delhi. Interestingly, all the prosecution witnesses have not stated something specific that they saw the respondent-accused driving the vehicle at the time of alleged accident.
11. PW-1, Constable Mohinder Pal while proving the case of the prosecution, reiterated that on 17.2.2007, ASI Lal Chand (PW-7) after having received information, went to the spot of accident and found that car bearing registration No.DL-1CC-6169 had fallen about 30 feet downwards from the road. He further stated that two occupants of the car were taken out by the police in an injured condition and they were taken to Mission Hospital, ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...9...
Manali. He categorically stated that the spot was inspected on 18.2.2007 i.e. one day after the alleged accident, because on the .
date of accident, it was raining. He further stated that police during the investigation found that accident in question had taken place due to the fact that the vehicle skidded down from the road.
Though, this witness stated before the Court below that since driver was under the influence of liquor, he was unable to control the speed of the vehicle, but it is not understood that once he was not present at the time of alleged accident, how he could make such statement. In his cross-examination, he categorically admitted that the accident in question did not take place in his presence. He further admitted in his cross-examination that at the place of occurrence there was a 'U' shape turn on the road, but otherwise same has been shown as blind curve in Ex.PW7/B i.e. spot map.
Similarly, though in the statement of this witness it has come that vehicle in question was being driven by respondent/accused Sanjay Dahiya, but question remains that who disclosed him that vehicle in question was being driven by the respondent/accused. Neither, it is the case of the prosecution nor it has come in the statement of this witness that they found respondent/accused sitting on the driver seat when they went to the spot to pull the persons tapped in the offending car.
12. ASI, Lal Chand (PW-7) Investigating Officer, also stated that on 17.2.2007, he received a telephonic message regarding the ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...10...
accident of car bearing registration No.DL-1CC-6169. He further stated that he found on the spot that vehicle had rolled down up to .
the distance of 30 feet down and the said car had struck a tree. It has also come in his statement that two persons, in an injured condition, were also trapped in it, who were taken out and were admitted in Mission Hospital, Manali. Interestingly, this witness stated that lateron he came to know about the fact that accused-
respondent Sanjay Dahiya was driving the vehicle and second occupant according to him was Bhopinder Singh. Interestingly, this witness has nowhere stated that from whom he came to know that vehicle was being driven by the respondent/accused and not by the other occupant Bhopinder Singh. He also like PW-1 nowhere stated that he found respondent-accused trapped in the driving seat. He also admitted that spot was inspected on the next date i.e. 18.2.2007 because on 17.2.2007, it was raining. Though, he admitted that during spot inspection, he found skid marks up to the distance of 30 feet, but he also not denied the suggestion put to him that number of vehicles passes through that road. Since, the accident had occurred on 17.2.2007, skid marks, if any ,observed by PW-7 on 18.2.2007 i.e. near the alleged site of the accident, has no relevance because admittedly as per own version of PW-7 numbers of vehicle passes through that road and he has nowhere stated that during the intervening period i.e. after the accident on 17.2.2007, till the time spot was inspected, ::: Downloaded on - 20/04/2018 23:18:32 :::HCHP ...11...
no vehicle had passed through that road and as such, learned First Appellate Court, rightly came to the conclusion that no much .
reliance could be placed upon the report of spot inspection.
13. Another independent witness PW-8 stated that on the date of alleged occurrence at about 9/ 9:50 PM, accused Sanjay Dahiya was planning to go to Delhi. He stated that since bus had already left Manali, accused Sanjay Dahiya took maruti car in order to board the said bus. He further stated that alongwith him Bhopinder Singh Cook was also in the vehicle. In his statement there is no specific mention, if any, with regard to the fact that vehicle in question was being driven at the relevant time by accused-respondent. He only stated that accused Sanjay Dahiya, who had to catch the bus for Delhi, took out the maruti car and left alongwith Bhopinder Singh. Though, this witness was declared hostile, but in his cross-examination by learned APP, nothing could be elicited to the contrary, what he stated in his examination-in-
chief. Save and except, these three witnesses PW-1, PW-6 and PW-
7, other witnesses are formal in nature and their version are not relevant for ascertaining the correctness of the judgment of acquittal recorded by the learned First Appellate Court. Since, factum with regard to death of other occupant namely Bhopinder Singh is not in dispute, there is no occasion for this Court to refer medical evidence led on record by the prosecution in this regard. As far as statement of PW-2 Dr. Philip Alexander, who proved the MLC ::: Downloaded on - 20/04/2018 23:18:33 :::HCHP ...12...
Ex.PW2/A, is concerned, same is also of not much relevance because admittedly in the case at hand no urine and blood sample .
of accused were drawn for arriving at a conclusion that he was driving the vehicle in question under the influence of liquor.
Otherwise also, as has been taken note above, learned trial Court while holding respondent/accused guilty of having committed the offence punishable under Sections 279,338 and 304-A of IPC, has already acquitted the accused for the commission of offence punishable under Section 185 of the motor vehicles Act, which finding of the learned trial court has already attained the finality.
14. Conjoint reading of the statements made by these material prosecution witnesses, discussed hereinabove, certainly creates doubt with regard to the correctness of the story put forth by the prosecution as there are material contradictions and inconsistencies in their statements and as such, no reliance could be placed upon the same.
15. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most ::: Downloaded on - 20/04/2018 23:18:33 :::HCHP ...13...
importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby .
satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-
"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14) " 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the ::: Downloaded on - 20/04/2018 23:18:33 :::HCHP ...14...
evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses.
.
16. Leaving everything aside, close scrutiny of the evidence adduced on record by the prosecution, clearly suggest that none of the prosecution witness stated something specific with regard to high speed and rash and negligent driving, if any, by the respondent/accused. Moreover, as has been observed above, none of the prosecution witness had an occasion to see the respondent/accused driving the vehicle at the time of the accident.
True, it is that bare perusal of MLCs adduced on record, suggest that accused himself suffered injuries, whereas another occupant of the car died on account of the injuries suffered by him in the alleged accident, but that may not be sufficient to hold respondent/accused guilty of having committed the offence punishable under Sections 279,338 and 304-A of IPC, especially when there is no direct evidence led on record by the prosecution to prove that at the time of alleged accident vehicle in question was being driven by the respondent/accused. Merely bald statement to the effect that vehicle was being driven rashly and negligently may not be sufficient to conclude that at the relevant time vehicle was being driven rashly and negligently, rather it was incumbent upon the prosecution to bring on record specific evidence, if any, with regard to the alleged rash and negligent driving of the vehicle by the ::: Downloaded on - 20/04/2018 23:18:33 :::HCHP ...15...
respondent-accused. None of the witnesses have stated something specific with regard to the speed of the car being driven by the .
respondent-accused at the time of accident, which could be one of the guiding factors while ascertaining the rashness and negligence, if any, on the part of the respondent-accused.
17. Reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:-
"6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been r brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.
8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."::: Downloaded on - 20/04/2018 23:18:33 :::HCHP
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18. The Hon'ble Apex Court in case titled "State of Karnataka v. Satish,"1998 (8) SCC 493, has also observed as .
under:-
"1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla"
on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka.
2. We have examined the record and heard learned counsel for the parties.
3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give ::: Downloaded on - 20/04/2018 23:18:33 :::HCHP ...17...
any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by .
"high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor r Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.
Appeal dismissed."
19. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically ::: Downloaded on - 20/04/2018 23:18:33 :::HCHP ...18...
held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa .
loquitur.
20. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment passed by the learned First Appellate Court, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld.
Accordingly, the appeal is dismissed, alongwith pending application(s), if any.
(Sandeep Sharma )
17th April, 2018 Judge.
(shankar)
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