Himachal Pradesh High Court
Ankit vs State Of Himachal Pradesh Reported In on 10 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10TH DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CRIMINAL REVISION NO. 92 OF 2013
Between:-
ANKIT
SON OF SHRI NARENDER THAKUR
RESIDENT OF VILLAGE KHERI,
TEHSIL KANDAGHAT,
TEHSIL KANDAGHAT, DISTRICT SOLAN, H.P.
.. PETITIONER
(BY MS. KUSUM CHAUDHARY, ADVOCATE)
AND r
STATE OF HIMACHAL PRADESH
RESPONDENT
(BY MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL)
This petition coming on for orders this day, the court passed the following:
O R D E R
Instant criminal revision petition filed under Ss. 397/401 CrPC, lays challenge to judgment dated 2.4.2013 passed by learned Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh in Cr. Appeal No. 21- Cr.A/10 of 2012, whereby, appeal filed by the petitioner-accused (hereinafter, 'accused') against judgment of conviction and order of sentence dated 4.6.2012/5.6.2012 recorded by learned Judicial Magistrate First Class, Rajgarh, District Sirmaur, Himachal Pradesh in Criminal Case No. 14/2 of 2011 has been partly allowed inasmuch as ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 2 judgment of conviction under Ss. 279, 337, 304A IPC has been upheld but the order of sentence has been modified as under:
Section Sentenced awarded by learned Sentence modified by first trial Court appellate Court 279 IPC Six month's rigorous Rigorous imprisonment reduced .
imprisonment with fine of Rs. to three months
1,000/-
337 IPC Rigorous imprisonment for six Rigorous imprisonment reduced
months and fine of Rs. 500 to three months
304A IPC Rigorous imprisonment for two Rigorous imprisonment reduced
years and fine of Rs. 5,000/- to six months
In default of payment of fine, to
further undergo simple
imprisonment for one month in
each offence
2. Precisely, the facts of the case, as emerge from the record, are that on 30.10.2010, an anonymous call was received at Police Station Rajgarh that a pickup vehicle had met with an accident at Dhamon curve near Nai Netti. Police after having visited the spot, recorded the statement of PW-1-Sohan Singh, an eye witness to the accident, Exhibit PW-1/A, under S. 154 CrPC, wherein he alleged that while, he was coming back, at 12.30 pm, from Nai Netti and was at Dhamoon curve, a Pick Up bearing registration No. HP-64-2704 came from Sanora side in a rash manner and went about 200 metres down the hill. He stated that there were around 10-11 occupants in the vehicle and accident had taken place due to rash and negligent driving of the Pick Up by its driver. On the basis of aforesaid statement, FIR, Exhibit PW-12/A, came to be registered at Police Station Rajgarh. Investigation revealed that at the time of accident, 11-12 persons were sitting in the vehicle and one girl, Sanjana, lost her life in the accident and others suffered minor and simple injuries.
Police, after completion of investigation, presented Challan in the competent court of law, which, being convinced that prima facie case ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 3 exists against accused, put notice of accusation to him, to which he pleaded not guilty and claimed trial.
3. Prosecution, with a view to prove its case against the accused, examined as many as fifteen witnesses, whereas, despite sufficient .
opportunity, accused failed to lead any evidence in his defence. However, in his statement recorded under S.313 CrPC, while denying the case prosecution, he pleaded that the accident took place due to mechanical failure in the vehicle. On the basis of evidence led on record by the prosecution, learned trial Court held accused guilty of having committed offences punishable under Ss. 279, 337 and 304A IPC and convicted and sentenced him, as per description given herein above.
4. Being aggrieved and dissatisfied with judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an appeal under S.374 CrPC, before learned Sessions Judge, Sirmaur District at Nahan, who partly allowed the appeal and while upholding the judgment of conviction recorded by learned trial Court, modified the sentence awarded against the accused, as noted above. In the aforesaid background, accused has approached this Court, in the instant proceedings, praying therein for his acquittal after setting aside the judgments of conviction and order of sentence recorded by learned Courts below.
5. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned by learned trial Court in the judgment of conviction and order of sentence further upheld by first appellate court, this court finds it difficult to agree with Ms. Svaneel ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 4 Jaswal, learned Deputy Advocate General that both the learned courts below have appreciated the evidence in its right perspective, as such, no interference is called for, rather, evidence collected on record by the prosecution, if read in conjunction, certainly compels this court to agree .
with Ms. Kusum Chaudhary, learned counsel for the petitioner that there are material contradictions and inconsistencies in the statements of prosecution witnesses and no much reliance could be placed thereupon by learned Courts below, while ascertaining the guilt, if any, of the accused under Ss. 279, 337 and 304A IPC. No doubt, one girl, namely Sanjana, unfortunately lost her life in the accident but if the evidence collected on record by the prosecution is perused in its entirety, it nowhere proves rashness or negligence on the part of the accused, rather, there is sufficient evidence to conclude that the accident occurred on account of mechanical failure in the vehicle.
6. Though, in the case at hand, prosecution examined as many as fifteen witnesses to bring home the guilt of the accused, but statements of PW-1 Sohan Singh (complainant), PW-2 Satish Kumar, PW-3 HC Sarwan Singh, PW-6 Pawan Bhonsale, PW-7 Smt. Priya Kapoor, PW-8, Elaichi, PW-9 Deepak Chauhan and PW-15, HC Balbir Singh are material to ascertain the correctness of the judgments of conviction and order of sentence recorded by learned courts below. Interestingly, out of aforesaid material prosecution witnesses, two eye-witnesses PW-1 and PW-2 were declared hostile.
7. PW-1 Sohan Singh, complainant, at whose instance FIR came to be registered and PW-2 Satish Kumar, turned hostile and they denied ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 5 the prosecution case in toto. Both these witnesses denied theirs having seen the accident, with their own eyes. Though, on the request of learned Public Prosecutor, both these witnesses were cross-examined but the cross-examination conducted upon these witnesses nowhere suggests .
that the prosecution was able to extract anything contrary to what these witnesses stated in their examination-in-chief.
8. PW-3 Head Constable Sarwan Singh, who at the relevant time was posted as Motor Mechanic in Police Lines Nahan, deposed that he examined the accidental vehicle and issued mechanical report, Ext. PW-
3/A. In his cross-examination, he admitted that he had found steering rod and the arm broken. He further admitted that if steering rod is broken, in that case, the steering control system does not work and the brakes also fail. He deposed that the steering rod and tie arm could have been broken prior to the accident and in that eventuality, the failure of the steering system could be the cause of accident.
9. PW-6 Pawan Bhonsale, who at the relevant time was traveling in the ill-fated vehicle, deposed that they boarded vehicle at Giri Pul and on the way, they asked driver of vehicle to drive the vehicle slowly as children were accompanying them, but he did not listen to them. He deposed that at 12.00 noon, when vehicle reached the spot of accident, driver was driving the vehicle in high speed and the same rolled down in a ditch and his daughter, Sanjana was crushed under the vehicle and died on the spot. He deposed that remaining passengers also suffered injuries and they were removed to Hospital at Solan for treatment. He further deposed that the accident had taken place due to the rash and negligent ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 6 driving on the part of the accused. In his cross-examination, this witness deposed that on the way, they stopped at two places, firstly for loading the goods and then half kilometres before the site of accident for going to toilet. He feigned ignorance about the claim of the accused that the .
accident had taken place due to mechanical failure but denied that the vehicle was being driven in slow speed.
10. PW-7 Smt. Priya Kapoor was also traveling in the ill-fated vehicle at the relevant time. She also deposed that she boarded the vehicle at Giripul. She deposed that on the way the vehicle was stopped at two places, firstly to load the bundle which had fallen down and secondly, at a place, half kilometres before the site of accident, for going to toilet. This witness also deposed that they asked the driver to drive the vehicle slowly, as he was driving the vehicle in a very high speed.
According to this witness also, accident had taken place due to rash and negligent driving on the part of the accused. In her cross-examination, this witness denied that the vehicle was being driven in slow speed or that they were demanding Rs. 6.00 Lakh from the accused, prior to lodging of the FIR. She further denied in cross-examination that the accident had taken place due to mechanical failure in the vehicle.
11. PW-8 Elaichi, who was also traveling in the ill-fated vehicle, deposed that she was sitting in the cabin of the vehicle. She further deposed that the accused bent down to look for something near his feet and in the meanwhile, the vehicle went off the road and rolled down into a gorge. This witness further deposed that the accident had taken place due to driving of the vehicle by the accused in high speed and his bending ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 7 down while the vehicle was moving. In her cross-examination, this witness disclosed that the vehicle had stopped for two second times.
12. PW-9 Deepak Chauhan, who was traveling in the vehicle at the time of accident, deposed that the accident had taken place due to rash .
and negligent driving on the part of the accused, who was driving the vehicle in a high speed. However, in his cross-examination, this witness denied that the vehicle had stopped 10-15 paces behind the site of accident. This witness also denied that the vehicle was moving at slow speed.
13. PW-15 Balbir Singh, the Investigating Officer proved on record statement of the complainant Ext. PW-1/A, site plan, Ext. PW-15/A and codal formalities completed by him during investigation. He denied that the accident occurred due to mechanical failure.
14. If the statements of all the witnesses are read in conjunction, certainly, there are material contradictions and inconsistencies with regard to rashness and negligence, if any, committed by the accused, while driving the ill-fated vehicle. Most importantly, PW-1 Sohan Singh, at whose instance FIR came to be instituted and who was the alleged eye-
witness of the accident, did not support the prosecution case, rather denied his presence on the spot. Though this eye witness turned hostile but was cross-examined at length by the learned Public Prosecutor, wherein the prosecution was unable to extract anything contrary therefrom, to what this witness stated in his examination-in-chief.
15. Similarly, PW-2 Satish Kumar, also denied that he had seen the accident taking places. Though PW-6, PW-7, PW-8 and PW-9, who at the ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 8 relevant time were traveling in the ill-fated vehicle, stated that the vehicle was being driven in high speed, but none of these witnesses stated anything specific with regard to rash and negligent act of the accused, while driving the ill-fated vehicle.
.
16. PW-8 Elaichi stated that the accident occurred on account of the fact that the accused bent down to look near his feet and in the meantime, the vehicle went down the road into ditch, but the remaining witnesses, PW-3, PW-6 and PW-7, nowhere corroborated aforesaid version rather, they categorically stated that the vehicle was being driven in high speed
17. To bring the case within the ambit of Ss. 279 and 337 IPC, it is necessary to prove rashness and negligence, but in the case at hand, though prosecution witnesses deposed that the vehicle was being driven in high speed but that is not sufficient to conclude guilt, if any of the accused under Ss. 279 and 337 IPC.
18. By now, it is well settled that specific evidence is required to be adduced on record by prosecution to prove rash and negligent driving, if any, on the part of the accused. Mere allegations are not sufficient to hold accused guilty of having committed offence punishable under Section 279 IPC. Rash and negligent act may be described as criminal rashness negligence but to prove guilt, if any, under S.279, prosecution is required to prove that the act of the accused was more than mere carelessness or error of judgment.
::: Downloaded on - 11/11/2022 20:31:27 :::CIS 919. At this stage, reliance is placed on judgment rendered by our own High Court in case titled Akshay Kumar v. State of HP, Latest HP LJ 2009 HP 72, relevant para of which reads as under:-
.
"8. In fact, an injury shall be deemed to be negligently caused whomsoever it is willfully caused, but results from want of reasonable caution, in the undertaking and doing of any act either without such skill, knowledge or ability as is suitable to consequences of such act, or when it results from the not exercising reasonable manner of using them or from the doing of any act without using reasonable caution for the prevention of mischief, of from the omitting to do any act which is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without an intention to cause injury or knowledge that it will be probably caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Rash and negligent act may be described as criminal rashness negligence. It must be more than mere carelessness or error of judgment."
The courts below did not appreciate the above facts that there was debris on the side of the road on the curve due to the slip, while negotiating the curve, as stated above, some witnesses have admitted that the danga gave way to the bus which caused the accident and the rash and negligent driving by the petitioner is also denied, therefore, it find that the findings of quilt arrived at against the petitioner by both the courts below were not based upon legal and proper appreciation of evidence. In the circumstances aforesaid, the petitioner cannot be said to have criminal rashness or negligence, thus he is entitled for the benefit of doubt as two views were deducible from the evidence on record."
20. Reliance is placed upon judgment of this Court in Gurcharan Singh versus State of Himachal Pradesh reported in 1990 (2) ACJ 598, relevant paragraphs of which are reproduced here-
in-below:-
::: Downloaded on - 11/11/2022 20:31:27 :::CIS 10"14. Adverting to the facts of this case, it is in evidence that the truck in question was loaded with fertilizer weighing 90 quintals. Obviously, it cannot be said that the speed of the vehicle was very fast. Secondly, it is a State Highway and not a National Highway. Therefore, the speed on this account as well cannot be considered to be high.
"15. Coming to the statements of witnesses on this aspect, it .
has been stated that the truck was moving in high speed but it has not been said as to what that speed actually was. To say that a vehicle was moving in a high speed is neither a proper and legal evidence on high speed nor in any way indicates thereby the rashness on the part of the driver. The prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved in a case under Section 304-A of the Indian Penal Code. Further, there are no skid marks which eliminate the evidence of high speed of the vehicle. In addition to this, it has been stated by the witnesses that the vehicle stopped at a distance of 50 feet from the place of accident. This appears to be exaggerated. However, it is not a long distance looking to the two points; viz, the first impact of the accident and the last tyres of the vehicle and the total length of the body of the truck in question. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of curve which frightened the child, cannot be considered to be without substance. This can otherwise be reasonably inferred that the petitioner would have blown the horn on seeing the child on the road as it is in evidence that the child had come on the pucca portion of the road while there is no evidence as to whether the witnesses, more particularly, Ghanshyam, PW7, Chander Kanta, PW8, mother, and a few other witnesses were there at that particular time. Rather the depositions of these witnesses indicate that they were coming from some village lane which was joining the main road in question. Children of this age, usually crafty by temperament, move faster than the parents and are in advance of them while walking. This appears to have happened in the present case. Minute examination of the circumstances of this case and the evidence brought on the record, discloses that the deceased had reached the pucca portion of the road much before the arrival of his parents and the witnesses. That is why in their deposition they have said that the child had been run over by the truck. On the other hand, the petitioner has stated that horn by him and started crossing the road which could not be seen by him and the result was the accident and the death of the child. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrian, however slow he may be driving the vehicle. In such a situation he cannot be held negligent; rather it appears that the parents of the child were negligent in not taking proper care of the child and allowed him to come alone to the road while they were ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 11 somewhere behind and they could have rushed to pull back the child before the approaching vehicle came in contact with him as it is in their depositions that the truck driver was at a distance coming at a high speed and in case the child wanted to cross the road, it could do so within the time it reached at the place of the accident. How the accident has actually taken place, has not been clearly and comprehensively stated by any .
of the witnesses. They appear to have been prejudiced by the act of the driver. Their versions are, therefore, coloured by the ultimate act of the petitioner and the fact that the child had been finished."
21. This Court is also fully conscious of judgment of Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182, wherein it has been held that no leniency should be shown to reckless drivers. The Hon'ble Apex Court has observed as follows:-
"25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish."
22. There can not be any disagreement with the concern expressed by the Hon'ble Apex Court in the aforesaid judgment with regard to carelessness /recklessness of the drivers, especially under the influence of alcohol. But in the instant case, as has been discussed above, prosecution was not able to prove beyond reasonable doubt that the ill-fated vehicle was being driven by the ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 12 accused, rashly and negligently, rather, version put forth by prosecution appears to be untrustworthy in view of material contradictions in the statements of the prosecution witnesses, and .
as such, this Court sees no application of aforesaid law laid down by the Apex Court in the instant case.
23. Apart from above, as has been discussed in the earlier part of judgment, there are material contradictions and inconsistencies, especially with regard to rash and negligent driving on the part of the accused coupled with the fact that two prosecution witnesses, who were allegedly present on the site of accident, have not supported the prosecution case and as such, learned court below, while determining guilt, if any, of the accused, ought to have exercised due caution and care while placing reliance upon statements of the prosecution witnesses.
24. By now it is well settled that in a criminal trial evidence of eye-
witness requires careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since fundamental aspect of criminal jurisprudence rests upon well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on the touchstone of consistency. In this regard, reliance is placed upon the ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 13 judgment passed by Hon'ble Apex Court in C. Magesh and others versus State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:-
"45. It may be mentioned herein that in criminal jurisprudence, .
evidence has to be evaluated on the touchstone of consistency.
Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P. (2008)16 SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy; ..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses."
25. In view of the aforesaid discussion and law laid down by the Hon'ble Apex Court as well as this Court, there are major flaws in the investigation of the prosecution and prosecution story does not appear to be believable.
26. Consequently, in view of detailed discussion made herein above, this Court finds merit in the petition, which is accordingly allowed. Judgment dated 2.4.2013 passed by learned Sessions Judge, ::: Downloaded on - 11/11/2022 20:31:27 :::CIS 14 Sirmaur District at Nahan, Himachal Pradesh in Cr. Appeal No. 21- Cr.A/10 of 2012 as also the judgment of conviction and order of sentence dated 4.6.2012/5.6.2012 recorded by learned Judicial Magistrate First Class, Rajgarh, District Sirmaur, Himachal Pradesh in Criminal Case No. .
14/2 of 2011 are quashed and set aside. Accused is acquitted of the offences framed against him. Bail bonds, if any, furnished by the accused are discharged.
(Sandeep Sharma) Judge November 10, 2022 (Vikrant) ::: Downloaded on - 11/11/2022 20:31:27 :::CIS