Himachal Pradesh High Court
Hans Raj Alias Hansu vs State Of Himachal Pradesh on 26 April, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.95 of 2008
Date of Decision : 26.4.2016
.
Hans Raj alias Hansu ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. G.R.Palsra, Advocate.
rt
For the Respondent : Mr. Rupinder Singh Thakur, Additional
Advocate General with Mr. Pankaj
Negi, Deputy Advocate General for
the respondent.
Sandeep Sharma, Judge (Oral)
By way of present Criminal revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, petitioner has assailed the impugned judgment dated 15.5.2008 passed by learned Sessions Judge, Mandi, H.P, whereby affirming the judgment dated 22.7.2006 passed by learned Judicial Magistrate Ist Court No. 3 Mandi, HP in Criminal Case No.110-II/2003, whereby the petitioner ( in short "accused') was convicted under Sections 279, 337 of Whether reporters of the local papers may be allowed to see the judgment?
yes ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...2...
IPC and under Section 181 of the Motor Vehicles Act and sentenced his as under:-
.
279 IPC S.I. for two months and fine of Rs. 500/-.
In default of payment of fine to
undergo S.I. for 10 days.
337 IPC S.I. for two months and fine of Rs. 500/-.
In default of payment of fine to
of
undergo S.I. for 10 days.
181 IPC S.I. for 2 months and fine of Rs. 500/-. In
rt default of payment of fine to undergo
S.I. for 10 days.
2. Feeling aggrieved with the impugned judgment dated 22.7.2006, passed by learned trial Court, petitioner filed an appeal under Section 374 of the Criminal Procedure Code before the learned Appellate Court but the same was dismissed.
3. Thereafter, the instant Criminal revision petition has been preferred by the petitioner-accused under Section 397 read with section 401 of Criminal Procedure Code, with a prayer to set-aside the impugned judgment passed by both the Courts below.
4. Mr. G.R.Palsra, learned counsel representing the petitioner vehemently argued that impugned judgments ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...3...
passed by both the Courts below deserve to be quashed and set-aside being contrary to law as well as facts on .
record. He also contended that learned trial Court has committed serious illegality while convicting the accused for the offences aforesaid on the basis of evidence adduced by the prosecution on record. He strenuously argued that in the of present case prosecution has miserably failed to connect the accused with the alleged commission of crime and the rt accused has been falsely implicated in the present case by the complainant in order to get compensation.
5. Learned counsel also argued that the evidence led by the prosecution is not reliable, trustworthy and cogent and the same could not be taken into consideration by the Courts below while convicting the accused.
6. Mr. Rupinder Singh Thakur, learned Additional Advocate General, appearing on behalf of the respondent-
State supported the judgment passed by both the Courts below. He submitted that bare perusal of the evidence led by the prosecution suggests that the complainant has suffered injuries due to rash and negligent driving of accused. He also stated that this Court has very limited ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...4...
powers under Section 397 of Criminal Procedure Code to re-
appreciate the evidence on record. Moreover, the .
judgment passed by learned first appellate Court clearly suggests that while upholding the judgment passed by learned trial Court, it had taken entire evidence brought by the prosecution on record in consideration.
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7. I have heard the learned counsel representing the parties and have carefully gone through the record rt made available on record.
8. Undisputedly, while exercising the power under Section 397 of Criminal Procedure Code , this Court has very limited power to re-appreciate the evidence led by both the parties. Since in the present case, where the petitioner-
accused has been convicted and sentenced to undergo simple imprisonment, details whereof has already been given above, it would be apt in the interest of justice, if the discrepancies pointed out by Mr. Palsra, during his arguments are analyzed by referring to the prosecution witnesses so that just and fair decision is arrived at.
9. In nutshell, the case of the prosecution is that on 5.8.2003, at about 9:00 PM, accused was driving the tractor ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...5...
bearing registration No.HP-33-2826 near Nalsar, District Mandi, H.P. It was alleged that since the accused was .
driving the aforesaid tractor in rash and negligent manner, he crushed the complainant Sant Ram (PW-1) and dragged him up to the distance of 50 feet. Sant Ram(PW-1), sustained simple injuries on his person due to the accident. It was also of alleged that after causing the accident, the accused ran away from the spot. As per prosecution story, a telephonic rt message was received at police Station, Balh, whereby Gopal Chand (PW-2 ) son of Sant Ram (PW-1), R/o Nalsar, Tehsil Sadar, District Mandi, HP informed the police vide Rapat No.24, dated 5.8.2003 Ex.PW7/A that his father has been crushed by the tractor , as such, he has been taken to CHC, Ratti.
10. Thereafter, police recorded the statement of the complainant under Section 154 Cr.P.C Ex.PW1/A and on the basis of which FIR Ex.PW1/B was registered against the accused and endorsement Ex.PW1/C to this effect was also made on the FIR. Subsequently, medical examination of the complainant was conducted and MLC Ex.PW6/A was obtained. It is undisputed that during the investigation, the ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...6...
Investigating Officer, who expired before his deposition before the Court, had prepared the spot map Ex.PW8/D. The .
Tractor alongwith its documents was taken into possession vide recovery memo Ex. PW2/A and Ex.PW2/B. Photographs Ex. PW8/E-1 to Ex.PW8/E-4 of the spot were also taken, negatives of which are Ex. PW8/E-5 to Ex.PW8/E-8.
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11. In the present case, prosecution with a view to prove its case, examined as many as eight witnesses. The rt statement of accused was also recorded under Section 313 Cr.P.C, wherein he denied all the allegations leveled against him and claimed to have falsely been implicated in the present case and did not lead any evidence in his defence.
12. Careful reading of statement given by complainant Sant Ram(PW-1) suggests that when he was lifting soil from the courtyard of his house, then alleged tractor came from Dadour side, which firstly struck on the side and thereafter against him and dragged him to the distance of 50 feet before striking with the telephone pole.
He stated that tractor was in a very high speed and the petitioner-accused fled away after leaving the tractor on the spot. Complainant also deposed that at that time, the driver ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...7...
of the tractor was drunk and accident took place due to his rash and negligent driving. At this stage, if we refer to the .
Ex.PW1/A statement of the complainant recorded at the first instance under Section 154 Cr.P.C immediately after lodging of report, he stated that the driver of the tractor fled away from the spot after causing accident and he does not know of his name and address but further, he qualified that he can recognize the person after seeing him. To the contrary, while rt making his statement before the Court he did not state that he recognized the petitioner-accused present in Court. But it remained unexplained that if his statement under Section 154 Cr.P.C Ex.PW1/A is taken to be correct why he did not state during his statement before the Court that he recognize the petitioner-accused present in the Court.
During his cross-examination, he admitted that his house is on the left side of the road and during relevant time, he had taken up the work of construction of stair and soil was lying on the road. A specific suggestion was put to him that soil was being carried to the other side of the road. Though, he has denied this suggestion but if photographs Ex.PW8/E-1 to Ex.PW8/E-4 are perused carefully, which clearly suggest that ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...8...
there is one water channel (Kuhal) between the site of the accident and alleged house of the complainant PW-1. If the .
version of PW-1 is read in its entirety, he says that at the time of accident he was working in his courtyard but at this stage, it remained unexplained after seeing the photographs referred above that how ill-fated tractor could cross the of water channel/kuhal existing between the road and the courtyard of the house Sant Ram (PW-1).
13. rt Moreover, in his statement under Section 154 Cr. P. C, PW-1 stated that while he was working in front of his house around 9:00 PM along with his son Gopal Chand (PW-2), tractor which was loaded with sand, came there from Luhara side towards Baggi in a very high speed. But in his examination-in-chief, he deposed that tractor came from Dadour side and perusal of the photographs Ex.PW8/E-1 to Ex.PW8/E-4 suggests that trolley of the tractor was empty and it was not loaded with sand, as stated by PW-1 in his statement under Section 154 Cr.PC. If the statement of PW-1 is read in its entirety juxtaposing the same with documentary evidence, it does not appear to be trustworthy and can ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...9...
easily be concluded that PW-1 was unable to identify the driver-accused.
.
14. This Court now adverts to the statement of Gopal Chand (PW-2) son of the complainant, who stated that at the relevant time he and his father were lifting soil/ mud from the front of their house and in the meantime, a of tractor came from Luhara side and struck against his father and dragged him. He stated that the tractor was being rt driven in a very high speed and accident occurred due to rash and negligent driving. He stated that the number of the tractor was HP-33-2826. He in his statement stated that police came on the next day and took into possession the tractor along with its documents vide recovery memos Ex.PW2/A and Ex.PW2/B. Perusal of rapat Ex.PW5/A suggests that intimation with regard to the accident was given by Gopal Chand (PW-2) to the police on 5.8.2003 and pursuant whereof, statement of PW-1 was recorded in CHC by the police on the same day but here it remained unexplained that why the police did not visit the site of the accident on the same day. Learned counsel appearing on behalf of the petitioner-accused stated that had the police come on the ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...10...
spot on the same day, person driving the tractor could have been arrested and medically examined to ascertain whether .
he was driving under the influence of liquor or not. He further stated that on the relevant date, police failed to reach the spot and identification of the driver could not be established.
PW-2, while informing the occurrence of accident vide of Ex.PW5/A stated at first instance that his father PW-1 has been crushed at Baggi by one tractor and he has been rt taken to CHC Ratti. However, in his statement given before the trial Court he stated that his father was crushed at Nalsar.
This Court has been informed that the distance between Nalsar and Bagii is more than 1 KM.
15. PW-5, HC Rajesh Kumar has also admitted in his cross-examination that the distance between Nalsar and Baggi is more than 1 KM. Even site plan Ex.PW8/D also suggests that the distance between Nalsar and Baggi is more than 1 KM. Gopal Chand (PW-2) however, identified the petitioner-accused in the Court. A careful reading of statement of PW-2, Gopal Chand also indicates that there are contradictions between the statement of PW-1 and PW-2 especially with regard to the place of accident because ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...11...
PW-1 at the first instance stated that the Tractor was coming from Dadour side and PW-2 stated that the tractor was .
coming from Luhara side. PW-1 stated that accident took place at Nalsar, whereas PW-2 while reporting the matter to the police stated that his father has been crushed by the tractor at Baggi.
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16. Perusal of the statement of PW-3, Smt. Lata Devi, who is daughter-in-law of PW-1 suggests that while her rt father-in-law was lifting mud near the courtyard and she along with her mother-in-law was preparing the food, she heard noise at around 9:00 PM thereafter she came out and saw that her father-in-law was lying in the courtyard and blood was also oozing out. Here, on this point on analyzing the aforesaid statement of PW-3 juxtaposing with the photographs Ex.PW8/E-1 to Ex.PW8/E-4, it indicates something contrary to the story of prosecution because entrance of tractor into the courtyard of the house of PW-1 does not seem to be plausible and trustworthy in view of the fact that one water channel/ kuhal exists between the road and the courtyard of PW-1. If PW-1 was hit by the tractor how could he be found lying in the courtyard because as per the ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...12...
statement of PW-1, tractor after hitting dragged him up to the distance of 50 feet. She categorically stated that she did .
not see the driver of the tractor at that time. She also admitted that their courtyard is above the road up to 3 feet.
In examination-in-chief, she categorically stated that Hans Raj of 'Rajgarh' was driving the tractor at the relevant time, of which cannot be accepted in view of the statement given by PW-4, Lalit Kumar, owner of the tractor bearing No.HP-33- rt 2826. PW-4, Lailt Kumar stated in his cross-examination that Hans Raj present in the Court is not the Hans Raj, who was the driver of his tractor. In view of the categorical statement made by PW-3, Hans Raj of Rajgarh was driving the tractor.
Careful perusal of the statement of PW-4, Lait Kumar where he says that person present in the Court is not same Hans Raj, who was actually engaged by him, prosecution story does not appear to be correct as all of the prosecution witnesses, as discussed above, have contradicted each other.
17. Unfortunately, ASI Ram Lal, who had recorded the statement of PW-1, Sant Ram, after the accident under Section 154 Cr.P.C and had carried out whole examination, was not examined. However, SI Om Prakash(PW-8), who filed ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...13...
the challan stated that ASI Ram Lal could not be examined because he was not alive at that time. However, no .
document showing that ASI Ram Lal had actually expired was placed on record during the trial.
18. Though, Gopal Chand (PW-2) has identified the petitioner-accused in the Court but if this Court peruse the of statement of PW-3, Smt Lata Devi, daughter-in-law of PW-1, Sant Ram where she stated in her examination-in-chief that rt on 5.8.2003 his father-in-law was lifting soil/mud from the courtyard near the staircase. She nowhere states that at that time PW-2, Gopal Chand was also present. From the careful reading of the statement of PW-2, it can be safely inferred that PW-2 was not present at that time PW-3 further stated that when she heard the noise of her father-in-law, she came out and saw her father-in-law lying in the courtyard. In her statement, she categorically stated that the tractor in question was being driven by Hans Raj of Rajgarh. The petitioner-accused whose name is also Hans Raj but record of the courts below shows that he is resident of village Satoh, Police Station, Balh, Tehsil Sadar, District Mandi, HP. Even PW-
4, Lalit Kumar son of Sh. Param Dev owner of the tractor has ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...14...
stated that the driver present in the Court was not the driver of the tractor. So in totality of the circumstances, after .
reading the statements of the aforesaid prosecution witnesses, it is difficult to accept that identity of the driver of the tractor was established by the prosecution beyond reasonable doubt.
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19. PW-6, Dr. Shalini Sharma, though proved the MLC Ex.PW6/A and stated that the injuries received by PW-1, Sant rt Ram are of simple nature and could be possible in vehicular accident. However, in cross-examination, she admitted the injuries caused to PW-1, Sant Ram are also possible due to fall.
20. In the present case, where the identity of the driver has not been established beyond reasonable doubt coupled with the fact that all the relevant prosecution witnesses have contradicted, medical opinion given by PW-
6 may not be of any help to the prosecution to prove its case.
21. Careful perusal of the photographs Ex.PW8/E-1 Ex.PW8/E-4 along with spot map Ex.PW8/D also indicates towards something else and it does not support the ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...15...
story put forth by the prosecution. Admittedly, there was water channel/kuhal between the house and the road .
where alleged accident took place. No explanation or evidence has been put forth by the prosecution that actually ill-fated tractor entered into the courtyard of the house of PW-1 after crossing the water channel/kuhal.
of Photographs Ex.PW8/E-1 to Ex.PW8/E-4 placed on record suggest that the tractor after causing the alleged accident rt was standing on the side of the road and, as such, story narrated by the prosecution suffers from various discrepancies and cannot be accepted on its face value.
22. Admittedly, after perusing the statement of the prosecution witnesses as well exhibits placed on record, two views are possible in the present case and as such, the petitioner-accused is entitled to the benefit of doubt. The learned counsel for the petitioner-accused has placed reliance on the judgment passed by Hon'ble Apex Court reported in State of UP versus Ghambhir Singh & others, AIR 2005 (92) Supreme Court 2439, wherein the 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 ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...16...
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 of testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by rt 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 of 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 the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...17...
are reasonably possible, the one in favour of the accused must be preferred."
.
23. 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:-
of "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 rt the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is 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 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 ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...18...
time of his medical examination, were simple in nature.
.
24. As far as scope of power 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 of Court Case241; 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 rt 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 or 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 ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...19...
cautiously when the Sessions Judge has simultaneously exercised revisional power 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 of irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
rt
25. In the present case also, as has been indicated that there are material contradictions in the statements of the prosecution witnesses as well documentary evidence made available on record by the prosecution. Hence, it is a fit case were interference of this Court is warranted and benefit of doubt is required to be given to the petitioner-
accused especially when identity of driver has not been proved by the prosecution beyond reasonable doubt.
26. In view of the aforesaid discussions, the judgment dated 15.5.2008 passed by learned Sessions Judge, Mandi, HP in Criminal Appeal No.23 of 2006 affirming the judgment of conviction and sentence awarded against the petitioner-
accused by learned Judicial Magistrate Ist Class Court No.3, ::: Downloaded on - 15/04/2017 20:11:04 :::HCHP ...20...
Mandi, HP vide judgment dated 22.7.2006 in criminal case No.110-II/2003 are set-aside and quashed. The petitioner is .
acquitted of the charges. His bails bonds are discharged.
The fine amount, if any, deposited by the petitioner-accused be refunded to him.
The present criminal revision stands disposed of, of so also pending application(s), if any.
April 26, 2016
rt (Sandeep Sharma )
Judge.
(shankar)
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