Himachal Pradesh High Court
Narender Kumar vs State Of H.P on 5 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 22 of 2010.
Date of Decision: 5.12.2016.
.
___________________________________________________________
[
Narender Kumar .........Petitioner.
Versus
State of H.P. ............Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes.
For the petitioner: Nemo.
For the respondent:
rt Mr. Ramesh Thakur, Deputy Advocate
General.
____________________________________________________________________
Sandeep Sharma, J. (Oral)
The present criminal revision petition filed under Sections 397 and 401 of the Cr.PC, is directed against the judgment dated 3.12.2009, passed by the learned Sessions Judge, Kullu, HP, in Criminal Appeal No.44/2008, affirming the judgment and order of conviction dated 20.9.2008, passed by the learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, HP, in Criminal Case No. 127-I/2002, whereby the accused-petitioner is sentenced as per description given herein below:-
"Section 304-A of IPC To undergo rigorous imprisonment for six months and to pay a fine of Rs. 2000/-.
"Section 279 of IPC To undergo rigorous imprisonment for two months. In default of payment of fine, to further undergo simple imprisonment for one month."
Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -2-2. Briefly stated facts as emerge from the record are that the complainant Chaudhary Ram owner of Auto No. HP-61-0076 got his .
statement Ext.PW4/A recorded under Section 154 of the Cr.PC to the Police Station Sadar Kullu on 28.3.2002, stating therein that he was coming to Baba Balak Nath Temple, driving his three wheeler and when he reached near Angora Farm, a motorcycle bearing registration of No. HP-34A-1105 came from Bhunter side in rash and negligent manner and crossed his three wheeler. He further stated that at about 100 rt yards away, master Rakesh Kumar (sincae deceased) was playing with colours on the festival of 'Holi' with his friends. He further reported that motorcycle of accused Narender Kumar struck with master Rakesh, as a result of which, he sustained injuries. He further stated that accused applied the brakes but motorcycle came to halt at some distance. He also reported to the police that accused along with pillion rider also fell from the vehicle, as a result of which, master Rakesh and the pillion rider also sustained grievous injuries on their person and were taken to Zonal Hospital Kullu, for treatment. He specifically reported that accident took place due to rash and negligent driving of the petitioner accused-Narender. On the basis of aforesaid statement having been made by Chaudhary Ram under Section 154 of the Cr.PC, police sent ruqa to the Police Station Kullu for registration of case i.e. Ext.PW5/A and on the basis of same, FIR Ext.PW5/B came to be registered against ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -3- the accused. I.O. after registration of case prepared the site plan Ext.PW5/C and taken into possession motorcycle vide seizure memo .
Ext.PW1/A. Police also got done medical examination of pillion rider namely Rajinder Kumar, in hospital vide MLC Ext.PA. I.O. moved an application Ext.PW5/F requesting therein medical officer to ascertain whether deceased master Rakesh was fit to make statement but of doctor opined that he was not in fit condition to give statement. Vide police docket Ext.PW5/E, the victim Rakesh Kumar was medically examined by the doctor vide MLC Ext.PB. During the investigation, the rt police obtained mechanical report of the motorcycle Ext.PW2/A. It also emerge from the record that injured was referred to PGI, Chandigarh, where he unfortunately expired on 18.5.2002 at 12.40pm. Police also got post mortem of the dead body of Rakesh conducted at General Hospital Chandigarh and procured postmortem report Ext.PC. Since it had emerged in the investigation that accident had occurred on account of rash and negligent driving of the motorcycle by the present petitioner, police after completion of investigation, presented the challan under Sections 279, 337, 338, 304-A of the IPC and Section 184 of the Motor Vehicles Act, 1988, before the competent court of law.
3. Learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, HP after satisfying itself that prima facie case exists against the accused put a notice of accusation, to which he pleaded not guilty and ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -4- claimed trial. Learned trial Court on the basis of evidence adduced on record by the prosecution, found the accused guilty of having .
committed offence under the aforesaid Sections and convicted and sentenced him as per description already given above.
4. The present petitioner-accused being aggrieved with the judgment of conviction passed by the learned trial Court, filed an of appeal under Section 374 of Cr.PC before the Court of learned Sessions Judge, Kullu, HP, who vide judgment dated 3.12.2009, dismissed the appeal. Hence, this criminal revision petition before this Court.
rt
5. The instant matter was admitted by this Court on 2.2.2010, where sentence imposed by the court below was suspended. After passing of the aforesaid order of suspension by this Court, matter was listed for final hearing on 16.7.2016 but on that day, none had come present on behalf of the petitioner and matter was adjourned.
Thereafter, matter was listed on 2.8.2016, on which date, nobody put in appearance on behalf of the petitioner despite repeated pass-overs and this Court in the interest of justice issued fresh notice to the petitioner intimating therein listing of the matter for final hearing on 13.9.2016. Subsequently, matter was listed on 22.10.2016, when Registry reported that petitioner stands served through his brother but despite that he failed to put in appearance before the Court. Since the petitioner was served through his brother, this Court, in the interest of ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -5- justice, issued bailable warrants to ensure the presence of the petitioner for 5.12.2016. Today, when the matter was listed before this Court, it .
transpired that bailable warrants issued to the petitioner in terms of order dated 22.8.2016, were duly executed upon the petitioner but despite that, he has failed to record his presence in the Court. This Court after perusing the previous orders passed by this Court has of sufficient reasons to conclude that the petitioner in one way or the other is avoiding his presence in the Court and as such this Court deems it fit to decide the matter on merits on the basis of material rt made available to it.
6. However, this Court deems it fit to take note of few of grounds of the petition taken in the revision petition before proceedings ahead the matter on merit:-
a. Petitioner in his petition has termed judgment of conviction recorded by the court below as erroneous since same is not based upon the correct appreciation of evidence available on record and as such, same deserves to be quashed and set aside.
b. It has further been stated that both the courts below have failed to take note of the fact that on that relevant day, victim was playing 'holi' on the road and possibility of negligence of victim could not be ruled out by the courts below before coming to conclusion that the petitioner was guilty of having committed offences under Section 279 and 304 IPC.::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -6-
c. Petitioner further claimed that identification of accused could not be established because PW4 Chaudhary Ram in his statement stated that he was initially not aware of .
the name of the driver but at later stage, he came to know about the name of person who was driving the vehicle and as such, no conviction, if any, could be recorded on the basis of hearsay evidence.
d. Petitioner further stated that PW4 was admittedly incredible witness because he was related to Rakesh of Kumar and as such, courts below have fallen in grave error while recording conviction of the petitioner accused by placing reliance on his statement.
rt e. Petitioner has also stated that it has specifically come in the statement of PW2 Arun Sood that brakes of motor cycle failed and as such, there was no human error involved in the accident and there was no negligence, if any, on the part of the petitioner accused.
f. Petitioner has further stated that cause of death of Rakesh was not established in the Court by the prosecution because admittedly death occurred on 18.5.2002 that is after a gap of 52 days of accident. Doctor, who had conducted the post-mortem examination, was never examined on oath and it can be said that there was no substantial evidence to prove that deceased master Rakesh died due to injuries suffered by him in the alleged accident.
g. Petitioner has also stated in the courts below that neither the vehicle was being driven rashly and negligently by him nor accident happened due to his fault, rather he acted diligently and with due caution but despite that petitioner has been guilty of having committed offence under Section 279 and 304 A, and the courts below have fallen in ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -7- error in not appreciating that the victim was playing "holi" on the road which itself suggests that he was careless and accident occurred due to his own mistake."
.
7. Per contra, Mr. Ramesh Thakur, learned Deputy Advocate General, representing the respondent-State supported the impugned judgments passed by the courts below. He vehemently argued that bare perusal of the impugned judgments suggests that same are of based upon the correct appreciation of the evidence available on record and prosecution has been able to prove its case beyond rt reasonable doubt and courts below have very meticulously dealt with each and every aspect of the matter. While referring to the judgment passed by the courts below, Mr. Thakur, contended that perusal of same suggests that same are based upon the correct appreciation of evidence adduced on record and as such, no lenient view can be taken by this Court while accepting criminal petition preferred by the petitioner accused. Mr. Thakur, further argued that bare perusal of the statements having been adduced on record by the prosecution clearly suggests that prosecution proved its case beyond reasonable doubt that petitioner accused was driving motorcycle at that relevant time in high speed that too rashly and negligently and caused death of Rakesh Kumar. He specifically invited attention of this Court to the statement of PW4 to demonstrate that deceased Rakesh Kumar ::: Downloaded on - 15/04/2017 21:41:06 :::HCHP -8- suffered injuries on account of being hit/struck by the motorcycle driven by the petitioner-accused in rash and negligent manner. In the .
aforesaid background, Mr. Thakur, prayed that present petition may be dismissed and the judgments passed by the courts below may be upheld. Mr. Thakur, also reminded this Court of its limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-
of appreciate the evidence when it stands duly proved on record that the courts below have dealt with each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment rt passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
8. I have heard the learned Deputy Advocate General appearing for the respondent-state as well as carefully gone through the record ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP -9-
9. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the .
instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse of and same are based on correct appreciation of the evidence on record.
10. As far as scope of power rt of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness .
committed by inferior criminal court in its judicial process or illegality of sentence or order."
11. During the proceedings of the case, this Court had an occasion to peruse the entire evidence led on record by the prosecution. Perusal of evidence available on record clearly suggests that of petitioner accused while defending his case has taken contrary pleas. On one hand, petitioner has taken the plea of alibi and on other hand rt suggestions have been made to the prosecution witnesses that children were playing 'holi' on the road and when they suddenly appeared, accident occurred. Defence also gave suggestion to the PWs that victim all of a sudden appeared on the road and the accused applied the brakes. In the instant case, prosecution with a view to prove its case, examined as many as six witnesses, whereas the petitioner accused in his statement under Section 393 Cr.PC pleaded innocence and refuted the case of prosecution in toto.
However, he did not lead any evidence in his defence.
12. PW1, Brahmu Dass, father of the deceased, stated that Chaudhary Ram PW4 told him that accused has caused the accident with his motorcycle and his son expired. He further stated that in his presence, motorcycle bearing registration No. HP-34A-1105 was taken into possession vide seizure memo Ext.PW1/A. He specifically admitted in his cross-
examination that at the time of accident he was not present. He also ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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admitted that at the place of accident near Angora Farm, Kuhal is flowing and it was "Holi" when accident took place.
13. Aforesaid statement having been made by PW1 may not be of .
any relevance in the present case because this witness is a hearsay evidence and himself has not seen happening the accident.
14. PW2 Arun Sharma, who mechanically examined the offending vehicle stated that report Ext.PW2/A bears his signatures and mentioned that of the hand-brake leaver was broken after the accident whereas brakes and light etc., were found in order.
15.
rt
PW3 Narender Sharma got conducted
examination of the dead body of the deceased and filled up form No. 25-35A post mortem vide Ext.PW3/A and obtained the post morten report Ext.PC but fact remans that he has not been cross-examined by the defence.
16. PW4 Chaudhary Ram is the sole eye witness of the accident. He almost reiterated his version got recorded by him in his statement under Section 154 of Cr.PC to the police before lodging FIR. He stated that on ill fated day 28.3.2002, he saw accused driving the vehicle near Angora Farm, which was coming from Bhunter side. He also stated that motor cycle was at high speed and boy was playing 'holi' along with other boys. It has also come in his statement that the pillion rider had also fallen of the motorcycle.
It has specifically come in his statement that later on, he came to know that the accused was driving the vehicle. He also stated that accident happened due to high speed and rash and negligent driving of the accused. In his cross-
examination he stated that on the day of accident, victim Rakesh was ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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playing 'holi' on the road . There are also residential houses and shops near the place of accident. He also admitted that PW1 namely Brahmu Ram, father of the victim, who met him in hospital is in his relation. He denied .
suggestion put to him by the defence that accident in question had not taken place in his presence. He specifically denied the suggestion put to him by the defence that boy all of a sudden appeared on the road and the motorcyclist applied the brakes. He also denied the suggestion put to him of that accident in question took place due to negligence of the injured. But it has come in his cross examination that he had seen the accused when the rt vehicle was impounded and prior to that he had not seen the accused. In the instant case, PW4 is only eye witness, who as per his own version saw the accident from the distance of 100 meters. It is also undisputed that on that relevant date, there was festival of 'holi' and people including injured deceased were also playing 'holi' on the road. PW4 in his statement categorically stated that the speed of motorcycle was high and mishap took place due to rash and negligent driving of the accused. True, it is that as per own statement of PW4, he saw the accused for the first time, when vehicle was impounded by the police but if his statement is read in its entirety, it clearly proves on record that motorcycle was being driven by the petitioner accused, who immediately after hitting the deceased fled away from the scene.
17. PW5 S.I. Baldev Singh (I.O.) also supported the case of the prosecution. In his cross-examination, he denied the suggestion that during the investigation people told him that children were playing 'holi 'on the road ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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and children suddenly appeared on the road, as a result of which, accident took place. Similarly, he denied the suggestion that accident had not taken place due to rash and negligent driving of the accused. PW5 further denied .
the suggestion put to him that accused was not driving the vehicle and being the owner of the motorcycle, he was being falsely implicated. It is also undisputed that after the accident motorcycle in question was taken into custody and same was examined by the mechanic Arun Sood, who vide of mechanical report Ext.PW2/A stated that hand brakes according to him, were broken after mishap.
18. rt The entire case of prosecution hinges upon the statement having been made by PW4 Chaudhary Ram, who at that relevant time was driving the Auto Riksha on the same road on which accident occurred. In his cross-examination, he admitted that statement Ext.PW4/A was recorded in the police station and he stated that accident took place on the day of holi.
PW4 has specifically stated in his statement that he saw the accident happening from the distance of hundred meters and it has also come in his evidence that he saw the accused for the first time when vehicle was impounded and prior to that he had no occasion to see the accused. He stated that petitioner accused crossed him on the road and thereafter, at a distance of hundred meters, he struck his motorcycle with the deceased. But aforesaid version having been got recorded by him in his statement under Section 154 Cr.PC doesn't appear to be correct, because he stated before Court that he saw the accused only when vehicle was impounded by the police and not before. If the aforesaid statement having been made by him ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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under Section 154 is taken to be correct, it clearly suggests that though motorcyclist had taken pass from him (PW4), who at that relevant time was driving the Auto Riksha, but either his face was covered with helmet or PW4 .
was unable to identify him.
19. In view of the above, this Court really finds it difficult to accept the statement having been made by PW4 that deceased Rakesh suffered injury after being hit by the petitioner-accused because admittedly, from a of distance of hundred meter, he couldn't see that motorcycle in question was being driven by the petitioner accused or not. This Court also finds from the rt record that as per statement of PW4 another person who was a pillion rider on the motor cycle at that relevant time, along with deceased was taken to the hospital for treatment but further perusal of statement of PW4 made under Section 154 Cr.PC belies the stand taken by the prosecution that driver of motorcycle namely Narender Kumar had fled away from the scene. It has specifically come in his statement that after accident he took deceased Rakesh Kumar as well as the pillion rider Rajinder Kumar, who had also suffered injuries, to hospital along with driver namely Narender Kumar.
20. At this stage, it is not understood that if PW4 had taken deceased child as well as pillion rider to the hospital with driver petitioner accused Narender, where was the occasion for him to state before the Court that he saw the accused for the first time when the vehicle was impounded and before that he had not seen him. Similarly, it is not understood why prosecution failed to cite the pillion-rider Rajinder Kumar as prosecution witness, who could be material witness to give factual sequence of events happened at the time of ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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the accident. Similarly, though it has come on record that Rajinder Kumar pillion rider also suffered injuries but there is no document available on record suggestive of the fact that he was also subjected to medical examination, .
which creates some doubt about the authenticity on the version put forth by the prosecution as well as deposition made by PW4.
21. This Court, after carefully examining the statement having been made by PW4, sees force in the grounds having been taken by the petitioner of accused that there are material contradictions in the statement of so called independent witness i.e.PW4, who admittedly, as per his own statement, saw rt happening the accident from the distance of 100 meters as has been discussed above. When PW4 was not able to see the petitioner-accused, when he was taking pass from him, how he could say with so much certainty that same motor cycle, which had taken pass from him hundred meters back, caused accident, as a result of which deceased suffered injuries and later on died.
22. True, it is that on the ill fated day, accident occurred, as a result of which, the deceased Rakesh Kumar lost his life but at the risk of repetition, it may be stated that none of prosecution witness, especially, PW4 Chaudhary Ram, who happened to be on the spot nowhere stated that vehicle in question was being driven at that relevant time by the petitioner accused.
He himself in his cross examination admitted that he saw the accused for the first time only when vehicle was being impounded by the police. Aforesaid admission having been made by him in cross-examination further belies the case of prosecution that petitioner accused had fled away from the scene ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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because PW4 in his statement recorded under Section 154 specifically stated that after accident, he along with driver of motorcycle took deceased Rakesh as well as pillion rider Rajinder Kumar to the hospital. Once PW4 had .
taken the victim as well as pillion rider to the hospital immediately after the accident along with accused, it is not understood that why did not he make statement before the Court that he had an occasion to see the accused at hospital. Hence, this Court after examining the statement of PW4 juxtaposing of the same with his statement recorded under Section 154 of the Cr.PC has reasons to conclude that there are material contradictions in the statement of rt PW4 and same does not appear to be trustworthy. Moreover, it clearly emerges from his statement that he went above the board to prove the case of the prosecution as he happened to be brother of PW1 Brahmu Ram i.e father of deceased Rakesh Kumar.
23. This Court also finds from the record that deceased was got medically examined and medico legal opinion was obtained by the police which suggests that deceased Rakesh Kumar sustained injuries on his person but interestingly, doctor in this case was never examined by the prosecution.
Courts below while ignoring the aforesaid glaring discrepancy have noted down that since MLC Ext.PB has been admitted by the accused and his counsel, examination of doctor may not be necessary. Perusal of aforesaid MLC Ext.PB suggests that patient was semi conscious, not cooperative and not following the verbal commands and the doctor found lacerated wound over left elbow joint and blood was oozing out from the wound. It has also come in that opinion that there is fracture/dislocation of left elbow joint and ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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he was advised for x-ray of left elbow. Abrasion on the right elbow joint, fresh bleeding was present. Perusal of MLC Ext.PB also suggests that ASI Mathru Ram brought original MLCs back for final opinion but xray advised on .
28.5.2002 were not done so final opinion could not be given whether this was a simple injury or grievous injury"
24. Aforesaid finding having been recorded by the doctor Ext.PB further destroys the case of prosecution because there is nothing on record to of suggest that injury, if any, suffered by the petitioner in that ill fated accident was either simple or grievous in nature. Moreover, as has been discussed rt above, doctor, who had given aforesaid MLC was never examined solely on the ground that accused as well as counsel has admitted aforesaid MLCs. I am afraid that aforesaid approach of courts below was correct because as has clearly emerged there is nothing on record to suggest that what kind of injury actually deceased suffered and the same could only be ascertained or proved by the examination of doctor, who had first occasion to examine him after the accident.
25. This Court also perused the post-mortem report i.e. Ext.PC, given by General Hospital, Sector 16, Chandigarh, which suggests that during post mortem, forensic expert found scar mark of surgery about 6 inch in length present at the back of left elbow joint . There is no mention, if any, of head injury having been suffered by the deceased. Forensic expert in his post mortem report reported that cause of death in this case was septicemia, as a result of multiple injuries to the vital organs of the victim, which was sufficient to cause death in the natural course of injury. In the instant case, admittedly ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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accident had occurred on 28.3.2002, whereas deceased passed away on 18.5.2002, i.e. after 52 days of accident. Though it has specifically come on record that cause of death is septicemia i.e. infection of blood, but there is no .
attempt on the part of the investigating agency/prosecution to place on record evidence suggestive of the fact that aforesaid cause having been pointed out by forensic expert was result of injury suffered by the victim in the accident.
of
26. After perusing aforesaid report of forensic expert as well as medical evidence, this Court sees substantial force in the grounds taken by rt the petitioner accused that since death had occurred after 52 days of accident, prosecution ought to have examined doctors who had initially examined the deceased after accident and thereafter expert who conducted post mortem examination to ascertain the actual cause of death of the petitioner accused.
27. True, it is that from the perusal of medical evidence available on record, it can be inferred that the petitioner accused had suffered injury due to aforesaid accident but certainly some may not be sufficient to conclude that injury suffered by the deceased Rakesh Kumar in the aforesaid accident was actual cause of death of the deceased, who admittedly died after 52 days of accident. Since it has been specifically concluded in the post mortem report that deceased Rakesh died due to septicemia, this Court is of the view that there can be other causes of death of the victim also, especially when there was surgical wound noticed by the forensic expert on the body of the deceased. Though this Court cannot substitute the medical opinion given ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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by the medical expert but in the absence of the statements of doctors, who gave aforesaid reports, this Court has definite reason to conclude that prosecution has been not able to prove its case beyond reasonable doubt .
that injury suffered by the deceased in the instant accident, was the actual cause of death of the victim. Hence, this Court is of the view that both the courts below have fallen in error while not appreciating the fact that doctors who had actually rendered MLCs and post-mortem report were important of witnesses, especially, to determine the cause of death of the deceased and as such, committed illegality while recording the conviction of the petitioner rt accused that too on the statement of PW4 Chaudhary Ram, who certainly in no manner can be termed to be a trustworthy witness. In the present case, neither prosecution was able to prove the identity of the petitioner-accused nor medical evidence adduce d on record by the prosecution was sufficient to prove the guilt of accused.
28. At the cost of repetition, it may be reiterated that mere admission of medical opinion available on record by defence could not be sufficient for the courts below to conclude that injury suffered by deceased Rakesh Kumar in the accident was the actual cause of his death. To my mind, factum, if any, with regard to cause of death of the deceased Rakesh Kumar could only be established by the prosecution by getting aforesaid medical reports proved in court by the doctors, who had rendered these reports.
29. This Court is also conscious of the fact that petitioner accused while defending himself has taken contradictory pleas regarding his presence ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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on the spot but it is settled law that prosecution is expected to stand on its own legs to prove its case.
30. Hence, this Court, after examining the statements of prosecution .
witnesses, sees considerable force in the contentions having been put forth by the counsel representing the petitioner that since identity of the accused was not established, no conviction, if any, could be recorded by the courts below.
31. Evidence discussed herein above is sufficient to hold that in of given facts and circumstances, two views are possible in the present case and as such present petitioner-accused is entitled to the benefit of doubt. In rt the present case, prosecution story does not appear to be plausible/ trustworthy and as such same cannot be relied upon. In this regard, I may refer to the judgment passed by the Hon'ble Apex Court reported in State of UP versus Ghambhir Singh, AIR 2005 (92) SCC 2440, where Hon'ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:-
"6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, he evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour o the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
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the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred."
32. The Hon'ble Division Bench of this Court vide judgment reported .
in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:-
"25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is of unnatural or inherently untrue.
26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be rt believed.
27.Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature."
33. Consequently, in view of the detailed discussion as well as law cited herein above, this Court sees substantial force in the criminal petition preferred by the petitioner and as such, same is allowed. Accordingly, judgments passed by the Courts below are quashed and set-aside. Petitioner accused is acquitted of the charges so framed against him. Bail bonds discharged. Interim order, if any, vacated. All applications, if any, also stand disposed of.
5th December, 2016 (Sandeep Sharma),
manjit Judge.
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