Himachal Pradesh High Court
State Of Himachal Pradesh vs Kashmir Singh on 16 December, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 234 of 2010 .
Date of Decision: December 16, 2015 State of Himachal Pradesh ...Appellant.
Versus
Kashmir singh ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt Whether approved for reporting? 1. No. For the Appellant: Mr. R.S. Verma, Additional Advocate General with Mr. Kush Sharma, Deputy Advocate General, for the appellant- State.
For the Respondent: Mr. Anup Chitkara, Advocate, for the respondent.
Sanjay Karol, J (oral).
In connection with FIR No.33 of 2007, dated 21.02.2007 (Ex.PW.17/B) registered at Police Station, Barsar, District Hamirpur, H.P., accused was charged to face trial for having committed offences punishable under the provisions of Sections 279, 337, 338, 304-A of the Indian Penal Code and Section 185 of the Motor Vehicles Act.
2. It is a case of road accident in which Lovely Kumari died. Accused was driving vehicle No. HP-21-0013 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 2in a rash and negligent manner which in fact was the cause of the accident. Allegedly the accused was driving the vehicle in a drunken state of mind. In effect, this is the case .
of prosecution and based on the eviden ce led by the prosecution, accused was convicted for having committed offences punishable under the provisions of Sections 279, 337, 304-A of IPC and Section 185 of the Motor Vehicles Act, of 1988, vide judgment dated 28.07.2009, passed by Judicial Magistrate, 1s t Class, Barsar, District Hamirpur, H.P., in rt Criminal Case No. 60-II-2007, titled as State Versus Kashmir Singh. Accused was sentenced to serve imprisonment for different period up to two years and fine.
3. Lower Appellate Court vide judgment dated 10.11.2009, passed in Criminal Appeal No. 55 of 2009, titled as Kashmir Singh Versus State of H.P., reversed the findings of fact and judgment of conviction and acquitted the accused on all counts. Hence, present appeal stands filed by the State under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
4. It be only observed that prosecution has examined eighteen witnesses. Except for Miss Gappu Rani (PW.1), Jagdev Singh (PW.2), Kehar Singh (PW.5), Ravi Dutt (PW.6), Kartar Chand (PW.7), Smt. Promila Devi (PW.8), Om ::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 3 Prakash (PW.9) and Surinder Singh (PW.10) all are official witnesses.
5. Now independent witnesses, including the .
complainant, who is sister of the deceased has not supported the prosecution. Ms. Gappu Rani (PW.1) states that she does not know that who was driving the car at the time of accident. Similar is the testimony of Jagdev Singh of (PW.2). In fact, he is emphatic that it was not the accused, who was driving the vehicle at the time of accident. Kehar rt Singh (PW.5) only states that after hearing loud noise he reached the spot and found one girl lying injured on the spot. He does not state as to whether accused was driving the vehicle or not. Testimonies of Ravi Dutt (PW.6), Kartar Chand (PW.7), Promila Devi (PW.8), Om Prakash (PW.9) and Surinder Singh (PW.10) are also to similar effect. None of them testified that accused Kashmir Singh was driving the car. Even Jagdev Singh, who was allegedly hit by accused has not supported the prosecution.
6. No doubt, accused was got medically examined by the police, but then Dr. Mohan K.S. Thakur (PW.3) has clarified that though accused had consumed alcohol, but was not under its influence at the time of medical examination which took place on 22.02.2007 at 8.00 AM.
::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 4Noticeably FIR stood registered on 21.02.2007 and the accident took place same day at 3.22 PM.
7. The only fact proved by the prosecution was that .
the car was registered in the name of the accused. Trial Court convicted the accused on this evidence. However, Lower Appellate Court set aside the conviction holding it not to be a sufficient and credible evidence.
of
8. Hence, there is no reason to interfere with the findings returned by the lower Appellate Court.
9. rt Lower Appellate Court does not find prosecution to have proved its case, beyond reasonable doubt, to the effect that on 21.02.2007 at about 3.15/3.20 PM, accused was driving his Maruti Car bearing No.HP-21-0013 in a drunken condition on a public highway in a rash and negligent manner, so as to endanger human life and public safety of others and while driving in such rash and negligent manner caused death of Lovely Kumari and simple injuries to Jagdev Chand, by leading clear, cogent, convincing piece of evidence.
10. The lower Appellate Court, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of lower Appellate Court is perverse, illegal, erroneous or based on incorrect and incomplete ::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 5 appreciation of material on record resulting into miscarriage of justice.
11. The apex Court in Basappa Versus State of .
Karnataka, (2014) 5 SCC 154, has held as under:-
"7.In the instant case, the main defence of the appellant before the trial court was that there was no evidence to hold that he was the driver of the tractor at the relevant time. According to the prosecution, of there is no direct evidence. Even the injured witness PW-5, who was driving the scooty, has not identified the driver. The High Court, on the only evidence that rt the appellant was scolded by people in the hospital, has come to the conclusion that the appellant was the driver of the tractor. There is no direct evidence with regard to the ingredients of Sections 279 and 304A IPC. The High Court, on re-appreciation of the evidence, has taken another view so as to convict the accused."
12. Also the apex Court in Kishan Chand and another Versus The State of Haryana, (1970) 3 SCC 904, has held as under:-
"17. This court approved in Kurban Hussain Mohammedali Rangwala Versus State of Maharastra, AIR 1965 SC 1616, the following passage in Emperor Versus Omkar Rampratap, (1902) IV Bom LR 679, where Sir Lawrence Jenkins had to interpret Section 304-A:
"To impose criminal liability under Section 304- A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and ::: Downloaded on - 15/04/2017 19:32:09 :::HCHP 6 negligent act of the accused, and that act must be the proximate and efficient; cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have .
been the cause sine qua non.""
13. The accused has had the adv antage of having been acquitted by the lower Appellate Court. Keeping in view the ratio of law laid down by the Apex Court in of Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, rt since it cannot be said that lower Appellate Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.
(Sanjay Karol),
December 16, 2015 Judge.
(Purohit)
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