Himachal Pradesh High Court
State Of H.P vs Hardev ..........Accused/Respondent on 7 September, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 564 of 2010
Date of Decision: 30.08.2018
.
______________________________ _______________________________________
[
State of H.P. .........Appellant
Versus
Hardev ..........Accused/Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellant: Mr. Dinesh Thakur, Additional Advocate General
with Mr. Amit Dhumal, Deputy Advocate
r General.
For the respondent: Mr. Maan Singh, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal appeal filed under Section 378 of the Cr.PC., is directed against the impugned judgment of acquittal dated 18.08.2010, passed by the learned Judicial Magistrate, Ist Class, Kandaghat, District Solan, H.P., in Cr. Case No. 32/2 of 2008, whereby the respondent accused came to be acquitted of the offences punishable under Sections 279, 337, 304-A and 201 of the IPC.
2. Briefly stated facts as emerge from the record are that PW1 Sunny Baghera, got his statement recorded under Section 154 Cr.PC (Ext.PW1/A) alleging therein that on 24.5.2008, one Maruti Car and private bus being driven by the accused had collided with head-on collision, as a Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -2-consequence of which, occupants of Maruti Car bearing No. HP -14-1483 received injuries and were taken to IGMC, Shimla. Unfortunately, one of injured namely Shri Satya Parkash succumbed to injuries on his way to IGMC .
Shimla. On the basis of aforesaid statement having been made by PW1, formal FIR (Ext.PW11/B) dated 26.3.2010, came to be registered against the accused. Police after completion of investigation presented challan in the competent court of law.
3. Learned Judicial Magistrate, Ist Class, Kandaghat, District Solan, H.P., on being satisfied that prima-facie case exists against the respondent-
accused put notice of accusation for having committed offence punishable under Sections 279, 337, 304-A and 201 of the IPC, to which the accused pleaded not guilty and claimed trial, however fact remains that he did no lead any evidence in support of his defence. Learned trial Court on the basis of evidence adduced on record by the prosecution held the accused not guilty of having committed offences punishable under Sections 279, 337, 304- A and 201 of the IPC and accordingly, acquitted him. In the aforesaid background, being aggrieved and dis-satisfied with the aforesaid judgment of acquittal recorded by the court below, appellant-State has approached this Court by way of instant proceedings, seeking therein conviction of the respondent-accused after setting aside the judgment of acquittal recorded by the court below.
4. Having heard the learned counsel for the parties and perused material available on record, this Court is not persuaded to agree with the contention of Sh. Amit Dhumal, learned Deputy Advocate General, that ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -3- court below while acquitting the respondent accused has failed to appreciate the evidence in its right perspective, rather this Court is of the view that court below has dealt with each and every aspect of the matter .
meticulously and has arrived at a right conclusion that prosecution has miserably failed to prove that accident in question occurred on account of rash and negligent driving of the respondent accused. Similarly, this Court is not in agreement with the argument of learned Deputy Advocate General, that there is overwhelming evidence available on record to the effect that vehicle in question was being driven by the respondent-accused in high speed and as such, court below ought to have held him guilty of having committed offence punishable under Section 279 of IPC, because by now it is well settled that high speed, if any, of the vehicle involved in the accident is not the sole criteria to determine the rash and negligent driving, if any, on the part of the driver, rather prosecution is obliged to lead positive evidence to the effect that vehicle involved in the accident was being driven rashly and negligently by the driver.
5. True it is that one person has lost his life, but that cannot be the sole ground to hold the accused guilty, especially when none of the prosecution witness stated something specific with regard to the rash and negligent driving of the respondent-accused at the time of the alleged incident. In the case at hand, prosecution with a view to prove its case beyond reasonable doubt examined as many as 13 witnesses, whereas respondent in his statement recorded under Section 313 Cr.PC., denied the case of the prosecution in toto and claimed himself to be innocent.
::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -4-6. PW1 namely Sunni Baghera, deposed that on 24.5.2008, he along with his father and one Sh. Mela Ram was returning from Shimla towards Kandaghat and at that time, car was being driven by Mela Ram. He .
further deposed that his father was sitting on the front seat with Mela Ram and he was sitting on the back seat and when they reached near Shiv Mandir, Vaknaghat, a private bus came from the opposite side and struck against the Maruti Car. This witness also deposed that bus which was in high speed struck against the car, as a consequence of which, he received simple injuries, whereas his father died when he was taken to the hospital. He also stated that Sh. Mela Ram received grievous injuries and there was fracture in his leg.
He stated before the court below that accident took place due to high speed and fault of the accused. He further deposed that at the time of accident, one Reena Chauhan, who was working at SDM office at Kandaghat, was also present on the spot and they were taken to the hospital in a private van. In his cross-examination, PW1 admitted that there is U-turn (blind curve) on the spot, however he voluntarily stated that accident took place ahead of the curve. He feigned ignorance with regard to the number of passengers travelling in the bus. He denied the suggestion put to him that accident took place because Maruti Car was being driven in high speed. He also denied that the driver of the Maruti Car had consumed liquor. In his cross-examination, he was unable to disclose after seeing photographs that where the accident took place.
7. PW2 Mela Ram, corroborated the statement of PW1 and deposed that bus in question was being driven by the respondent-accused in ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -5- high speed. He stated that he received multiple injuries, whereas PW1 Sunny received minor injuries. He also stated that after the accident, accused moved the bus towards his side 20-25 feet ahead. He stated that he was .
taken to the hospital by Reena Chauhan and one advocate was also present on the spot, who had helped him. He deposed that accident took place due to high speed of the bus and due to negligence of the accused. In his cross-
examination, he admitted that it was drizzling on the day of the occurrence.
He stated that accident took place at about 5:30 pm. He admitted that there was curve on the spot, but voluntarily stated that accident took place ahead of the curve. He also admitted that there was a blind curve on the spot He further stated that he gained consciousness after the accident and he was not aware about the status of Satya Parkas and Sunny. He also feigned ignorance with regard to the presence of 30-35 passengers in the bus and denied that accident took place because car was being driven in high speed. He also denied the suggestion that he had consumed liquor. PW2 feigned ignorance that after the accident, passengers of the vehicle and other persons on the spot had repositioned the bus on the left side of the road in order to avoid traffic jam.
8. PW4 Smt. Reena Chauhan, deposed that she is working in SDM Office at Kandaghat and on 24.5.2008, in the evening, she was travelling in Jugna Travels and was going towards Shimla. She stated that bus was being driven by the accused, who is present in Court and at that time, she was sitting on the conductor side. She stated that when bus reached near Vaknaghat, there was a collision and the bus met with an accident with a ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -6- Maruti Car. She further sated that when she alighted the bus, she saw that heavy damage was caused to the Maruti Car on driver side and the person, who was driving the car, was known to her, whose name was Mela Ram, who .
was working in Tehsil office Kandaghat. She further stated that Satya Parkash was very serious, he and his son were sent to hospital in a private vehicle and Mela Ram was sent in another car to IGMC, Shimla for treatment. She feigned ignorance that on account of whose fault, accident took place. In her statement she stated that she is not aware that on whose negligence, accident took place. Interestingly, this witness was never cross-examined qua the aforesaid submission made by her.
9. PW5 Mr. Rakeshwar Lal Sood, Advocate, deposed that on the date of occurrence, he was traveling in his private car and was coming from Kasauli towards Shimla and at about 6:30 or 6:45 pm, one private bus was in front of his car which was going towards Shimla. He stated that bus bearing No. HP-63-1818 was being driven by the accused in high speed and in rash and negligent manner. He identified the accused person present in the court and claimed that bus was being driven rashly and negligently as the accused was on wrong side and thereafter, hit the car with high speed. He deposed that the impact of the collision was so high that car was dragged behind and its face turned towards the side of Shiv Mandir, whereas it was towards the side of Kandaghat. He also deposed that there were three occupants in the car. One was sitting on the back side and two persons were on the front side.
He stated that due to collision the engine of the car was crushed and the person who was sitting on the driver seat was critically injured. He further ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -7- stated that accused had not made any efforts to help the injured, but in fact being on right side after the accident, he took his bus towards left side about 30 to 40 feet ahead towards the temple in order to destroy the evidence. He .
deposed that accident took place due to rash and negligent act of the accused, who was driving the bus on the wrong side. In his cross-examination, he admitted that he crossed the Kandaghat approximately at 6:00 pm and it was not raining on that day. He also deposed that accused was not known to him. He in his statement in the Court also admitted that his statement was recorded by the police after 3 days of the occurrence in his office at Shimla.
He denied that accident had not taken place in his presence. He also denied that he is deposing falsely against the accused person because deceased and the driver of the Maruti Car were govt. employees and he being emotional is deposing against the accused person. This witness claimed that he being responsible law abiding citizen is well aware of his legal duties towards the society and he is disclosing true facts of the occurrence before the court.
10. PW3, Sh. Vivek, who was conductor in the bus at that relevant time, came to be associated by the police in investigation. During investigation, accidental bus alongwith its documents was taken into possession by the police vide memo Ext.PW3/A. He is one of the witness to this memo. In his cross-examination, he stated that he was present in the bus at the time of the accident. He deposed that accident took place because Maruti Car was being driven in high speed. He denied that driver of the bus had parked the bus to the left side in order to avoid the traffic jam. On re-
::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -8-examination by the prosecution, this witness admitted that bus was being driven by the accused and where the accident took place, there was wide road. He categorically stated that bus was at the speed of 30-35 k.m. per .
hour. He also claimed that smell of the liquor was coming from the mouth of the injured and heavy damage was caused to the maruti car. He denied that accused was driving the bus in high speed and accident took place due to rash and negligent driving of the accused. Though, he admitted that accused was studying with him in the school but denied that he is deposing falsely on account of his relations with the accused.
11. Conjoint reading of the statements having been made by all the prosecution witnesses though clearly suggests that on the date of alleged incident, accident had taken place at a place called Shiv Mandir near Vaknaghat, but none of the prosecution witnesses, save and except, PW5, Mr. RL. Sood, stated something specific with regard to the rash and negligent driving, if any, by the respondent-accused. If the statement of PW5 is read in its entirety, it certainly suggests that vehicle was being driven rashly and negligently, but there appears to be considerable force in the argument of learned counsel representing the respondent-accused that version put forth by PW5 Mr. Rakeshwar Lal Sood, whose presence on the spot is otherwise doubtful in view of the statements made by other prosecution witnesses, with regard to head on collision cannot be accepted on its face value because PW5 Mr. Rakeshwar Lal Sood had no occasion to see the accident with his eyes because admittedly at that relevant time, he was behind the bus being driven by the respondent-accused. Apart from above, there is force in the ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP -9- argument of learned counsel for the respondent that best person to depose with regard to the rash and negligent driving and head on collision of the vehicle involved in the accident was PW4 Reena Chauhan, who claimed .
before the court below that she was sitting on the conductor side of the bus.
According to her, when the bus reached near Shiv Mandir at Vaknaghat, there was collision and the bus met with an accident with Maruti Car. While referring to the statement made by PW4 Reena Chauhan, learned counsel for the respondent argued that there is nothing in her statement that bus in question was being driven rashly and negligently by the accused and accident occurred due to rash and negligent act of the accused. Careful perusal of statement of this witness suggests that she feigned ignorance with regard to the cause of the accident because admittedly she stated that she is not aware that accident took place due to high speed or rash and negligent act on the part of the accused.
12. Similarly, as has been discussed herein above, there is nothing in the statements of PW1 Sunny and PW2 Mela Ram, who were occupant of the Maruti Car that bus in question was being driven rashly and negligently, rather both the witnesses stated before the Court below that bus was in high speed but that may not be a sole ground to determine the guilt, if any, of the accused. By now it is well settled that to prove the rash and negligent act, prosecution is obliged to lead positive evidence, but in the case at hand, there is no cogent and convincing evidence led on record by the prosecution that at the time of accident, vehicle in question was being driven rashly and negligently by the accused.
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13. No doubt, if the version put forth by PW5 Mr. Rakeshwar Lal Sood, is taken into consideration, it clearly suggests that bus in question was being driven rashly by the accused and he was in high speed, but if his .
statement is read juxtaposing the statements of PW1 and PW2, it creates suspicion with regard to the presence of Mr. Rakeshwar Lal Sood on the spot.
PW5 in his cross-examination categorically admitted that he crossed Kandaghat at about 6:00 pm and bus being driven by the accused was ahead of his car, but aforesaid version put forth by him, belies the version put forth by PW1 Sunny, who was the occupant of the Maruti car, wherein he claimed that accident took place at about 4:50 pm or 5:30 pm. The aforesaid statement is corroborated by PW2 Mela Ram, who admitted that accident took place at about 5:30 pm. It is not in dispute that spot of occurrence i.e. Shiv Mandir, is 10 km away from Kandaghat towards Shimla side, meaning thereby, if PW5 was at Kandaghat at 6:00 pm, he would have reached Shiv Mandir by 6:20 or 6:30 pm and as such, version put forth by him with regard to his having seen the accident by his own eyes is highly unbelievable and untrustworthy. Otherwise also, if the statement of PW5 is admitted to be true, that he had reached the spot at 6:30 pm, even then by that time accident had already taken place, meaning thereby, he had no occasion to see the accident with his own eyes, and as such, version put forth by him with regard to the rash and negligent driving by the respondent accused and head-on collision of bus with Maruti Car, cannot be accepted. PW2 Mela Ram in his statement deposed that after some time of the accident, one advocate had reached the spot, who helped them, which further suggests that PW5 had ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP
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reached on the spot of the occurrence after the accident. No doubt statements of PW1, PW2 and PW4 suggest that PW5 was present on the spot because all of them have stated that he helped taking injured to the hospital, .
but presence of PW5 at the time of accident i.e. 4:50 to 5:30 is highly doubtful as per own testimonies of PW2, PW3, PW4 and PW5 himself.
14. Leaving everything aside, if the statements of PW1, PW2 and PW4 are read juxtaposing the statement of PW5, there are contradictions with regard to the fact that accused was driving the bus on his wrong side and there was head on collision. Neither PW1 nor PW3 and PW4 stated that accused was driving the bus on his wrong side and there was head on collision on the front side of the Maruti Car towards the side of the Shiv Mandir.
Similarly, statements having been made by PW1 and PW2 that bus in question was being driven in high speed are not corroborated by the other PWs i.e. PW3 and PW4, who were present on the spot. PW3 namely Vivek, who was the conductor of the bus only came to be cited as a witness to the recovery, whereas prosecution ought to have cited him as an eye witness to the accident, because he could be said to be the best person having first hand opportunity to witness the accident with his own eyes.
15. Having carefully perused the evidence available on record, this Court is persuaded to agree with the contention of Mr. Maan Singh, learned counsel representing the respondent-accused that there are material contradictions and as such, learned court below rightly did not place reliance upon the contrary evidence led on record by the prosecution.
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16. Reliance is also placed on Judgment passed by the Hon'ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC 645, wherein it has been held as under:-
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"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, 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 Suraj Singh v. State of U.P., 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 situations where there are multiple testimonies and equally large number of witnesses testifying before the court. 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."
17. Be that as it may, in the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently that too at high speed. In this regard, 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 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.::: Downloaded on - 07/09/2018 23:02:31 :::HCHP
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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."
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 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 ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP
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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 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 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. The Hon'ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285, has held as under:
"15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP
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consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents.
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'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010].
20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as :
The event would not have occurred but for someone's negligence.
The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
Accused was negligent and owed a duty of care towards the victim."::: Downloaded on - 07/09/2018 23:02:31 :::HCHP
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21. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, relevant para whereof is as under:
.
"4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial."
22. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, this Court sees no reason to differ with the well reasoned judgment passed by the learned court below which appears to be based upon the proper appreciation of evidence ::: Downloaded on - 07/09/2018 23:02:31 :::HCHP
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adduced on record and the same is accordingly upheld. Consequently, the appeal is dismissed being devoid of any merits.
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30th August, 2018 (Sandeep Sharma),
manjit Judge
r to
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