Himachal Pradesh High Court
Between vs State Of Himachal Pradesh Reported In ... on 16 December, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 16TH DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL APPEAL NO. 240 OF 2010
Between:-
STATE OF HIMACHAL PRADESH
APPELLANTS
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. NARINDER THAKUR,
MR. KAMAL KISHORE AND
MR. GAURAV SHARMA,
DEPUTY ADVOCATES GENERAL)
AND
TARSEM CHAND
SON OF SHRI SANT RAM,
CASTE DALIT,
RESIDENT OF
VILLAGE MANJHIANI, TEHSIL BANGANA,
DISTT. UNA, H.P.
ACCUSED/RESPONDENT
(BY MR. N.K. THAKUR, SENIOR ADVOCATE
WITH MR. DIVYA RAJ SINGH, ADVOCATE)
Whether approved for reporting: yes.
This appeal coming on for orders this day, the court delivered the following:
JUDGMENT
By way of instant appeal filed under S. 378 CrPC, challenge has been laid to judgment of acquittal dated 1.12.2009 recorded by learned Chief Judicial Magistrate, Una, district Una, Himachal Pradesh in Criminal Case No. 89-II-2003 whereby learned court below held respondent-
::: Downloaded on - 31/01/2022 23:26:39 :::CIS 2accused (hereinafter, 'accused'), not guilty of having committed offence punishable under Ss.279 and 337 IPC.
2. In nutshell, case of prosecution is that on 26.2.2003, while the .
persons namely Gurpreet Singh, Pawan Kumar, Ranjeet Singh and Praveen Kumar were coming from Mehatpur towards Una in a Maruti car bearing registration No. DL-4CA-4575 being driven by Praveen Kumar, at 12.30 am, near Government College Una, a Tata Sumo bearing registration No. HP-20A-8400, being driven by accused Tarsem Chand, came in high speed and struck against the car being driven by Praveen Kumar, as a result of which occupants of car, suffered multiple injuries.
After having received information police reached the spot and took into possession both the vehicles as detailed herein above, alongwith documents. Though all the occupants of the car were taken to hospital but unfortunately one occupant, Ranjeet Singh died whereas, others suffered simple and grievous injuries. After completion of investigation, police presented Challan in competent court of law for commission of offences under Ss. 279, 337, 338 and 304A IPC.
3. Learned court below having found prima facie case against the accused, put to him notice of accusation under Ss. 279, 337, 338 and 304A IPC, to which he pleaded not guilty and claimed trial.
4. Prosecution with a view to prove its case, examined as many as 13 witnesses, whereas, accused in his statement under recorded under S. 313 CrPC, claimed himself to be innocent but despite opportunity did not lead evidence in his defence.
::: Downloaded on - 31/01/2022 23:26:39 :::CIS 35. Learned trial Court on the basis of the evidence adduced on record by the Investigating Agency, held accused not guilty of having committed offence punishable under aforesaid provisions of law and as .
such, acquitted him vide impugned judgment of acquittal dated 1.12.2009.
In the aforesaid background appellant has approached this court in the instant proceedings, praying therein for conviction of the accused, after setting aside judgment of acquittal recorded by learned court below.
6. Though, Shri Gaurav Sharma, learned Deputy Advocate General, while making this court peruse evidence collected on record by Investigating Agency, made a serious attempt to persuade this Court to agree with his contention that the learned court below has failed to appreciate the evidence in right perspective, and as such, findings contrary to record have come to the fore but after having scanned entire evidence, this court has no hesitation to conclude that the prosecution miserably failed to prove, beyond reasonable doubt that on the date of alleged incident, Tata Sumo collided with Maruti car and at that time, vehicle was being driven by accused Tarsem Chand.
7. Though, in the case at hand, as has been taken note above, prosecution examined 13 witnesses but statements made by PW-11 Pawan Kumar, PW-12 Praveen Kumar and PW-2 Gurpreet Singh may be relevant to determine the correctness of findings recorded by learned court below. All the aforesaid witnesses as named herein above, were occupants of the car bearing registration No. DL-4CA-4575, which allegedly was hit on wrong side by the accused, while driving Tata Sumo ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 4 bearing registration No. HP-20A-8400. If the statements of aforesaid witnesses are read in conjunction, juxtaposing each other, this court finds substantial force in the submission of Mr. Divya Raj Singh, Advocate that .
there are material contradictions and inconsistencies with regard to timing and identity of the driver and as such, same were rightly rejected by learned court below, while rendering judgment of acquittal in favour of the accused.
8. PW-12 Praveen Kumar deposed that on 26.2.2003, while he alongwith Pawan Kumar, Ranjeet and Gurpreet was coming in Maruti car bearing registration No. DL-4CA-4575, from Dehra to Una, Tata Sumo suddenly came on wrong side and collided with their car, as result of which, they sustained injuries and were brought to hospital. He deposed that one of occupants, Ranjeet Singh died. He also deposed that the accident took place on account of rash and negligent driving of the accused. In his cross-examination, he feigned ignorance with regard to number of persons sitting in Tata Sumo. This witness stated that he did not see any person in the Tata Sumo. Most importantly, this witness deposed that they left Mehatpur at 12/12.15 am and accident took place at 12.30 am. He stated that the police did not prepare the spot map in his presence and only photographs were clicked in his presence. He deposed that he did not disclose umber of Tata Sumo vehicle to the police.
9. PW-2 Gurpreet also deposed that on 26.2.2003, while he alongwith Pawan Kumar, Ranjeet and Praveen Kumar, was coming in Maruti car from Mehatpur towards Una, at 12.30 am, Tata Sumo bearing ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 5 registration No. HP-20A-8440, came on wrong side and struck with their car, causing injuries to them. He stated that driver of Tata Sumo vehicle ran away from the spot. In his cross-examination, this witness admitted .
that they left Mehatpur at 11.00 and it takes 20-25 minutes to reach Una.
He admitted that he was sitting on rear seat of the vehicle. He stated that after accident, he came out of car and read number of Tata Sumo. He stated that he may have named the person, who was driving Tata Sumo but when confronted with his statement given to police, it was not so recorded.
10. PW-11 Pawan Kumar deposed that he was traveling in Maruti car and when they reached near DAV School, Tata Sumo came in high speed and struck against their car, as consequence of which he and Parveen Kumar sustained injuries. He deposed that the accident took place due to rash and negligent driving of the Tata Sumo. Interestingly, in cross-examination, this witness stated that they left Mehatpur at 10.30 am and it takes 20-25 minutes to reach Una. This witness stated that the person sitting on the back seat of car cannot see what happens in front.
11. If the statements of aforesaid prosecution witnesses, who are very material, as they were present on the spot, are read in their entirety, it can be safely inferred that none of these witnesses were able to identify the driver of the Tata Sumo vehicle. All the witnesses, as detailed herein above, have not stated anything specific with regard to number of occupants as well as driver of Tata Sumo car. One of witness, Gurpreet ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 6 though stated that driver of Tata Sumo ran way from spot, but he nowhere stated that he identified him (accused).
12. On the top of everything, all the above named witnesses gave .
different timings with regard to their departure from Mehatpur to Una and the time of accident. PW-12, Praveen Kumar, who was driving Maruti car bearing registration No. DL-4CA-4575, stated that they left Mehatpur at 12/12.15 am and accident took place at about 12.30 am, whereas PW-2 Gurpreet Singh stated that they left Mehatpur at 11 o'clock and it takes 20- 25 minutes to reach Una. PW-11 Pawan Kumar stated that they left Mehatpur at about 10.30 am and it takes 15-20 minutes to reach Una.
13. As per prosecution story, accident occurred at 12.30 am, but timing given by material prosecution witnesses does not match with the timing of accident given by the prosecution. There is not a difference of few minutes regarding timing of accident, in the statements given by prosecution witnesses as discussed herein above, rather, difference is of more than one and half hours
14. PW-13 Prabhat Chand, Investigating Officer, deposed that after having received telephonic information, he came to hospital and recorded statement of Gurpreet Singh, Ext. PW-2/A and sent to Police Station Una, meaning thereby he visited the spot after having recorded the statement of one of the injured, Gurpreet Singh. As per this witness, he prepared the spot map Exhibit PW-13/B and got photographs of spot clicked, which are Exts. PW-13/C to 13/G, but this court cannot lose sight of the fact that Mehatpur-Una road is one of the busiest roads and as such ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 7 it is not understood that how, after delay of more than one hour, Investigating Officer could prepare the spot map that too on the busiest road. In his cross-examination, this witness stated that he prepared spot .
map in the presence of Praveen Kumar but if the statement of PW-12 Praveen Kumar is perused, he categorically stated that the police came after half an hour of the accident and did not prepare the spot map in his presence and only photographs were clicked in his presence. Aforesaid statement of PW-12 Praveen Kumar renders the statement of PW- 13, Prabhat Chand, totally unbelievable and doubtful. This witness also stated that it has come to his notice during investigation that 3-4 persons were traveling in Tata Sumo vehicle, but he has not recorded statement of any of such persons. Once factum with regard to traveling of 3-4 persons in Tata Sumo vehicle, had come to the notice of the Investigating Officer, he ought to have recorded statements of some of the occupants of Tata Sumo vehicle, to ascertain factum with regard to accident.
15. Leaving everything aside this court finds from the record that though case under Ss. 279, 337, and 338 and 304A IPC came to be registered against the accused but none of the prosecution witnesses has stated anything specific with regard to rash and negligent driving by the accused.
16. 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 ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 8 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.
17. 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."
18. 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:-
"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 ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 9 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 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 ::: Downloaded on - 31/01/2022 23:26:39 :::CIS 10 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."
19. 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."
2. 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 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.
::: Downloaded on - 31/01/2022 23:26:39 :::CIS 1120. Though in the case at hand, prosecution by proving MLC's Exhibits PW-1/A to 1/C, has attempted to prove injuries suffered by occupants of Maruti car in the alleged incident, but that may not be .
sufficient to conclude guilt, if any of the accused, especially when there is no evidence to link him with the accident. Though PW-1, S.K. Bansal and Dr. Manoj Kapoor, PW-3, while proving MLC's as taken note herein above, opined the injuries to be simple and grievous in nature but since the prosecution has not been able to prove that the occupants of the car /injured as well as deceased suffered injuries on their persons after being hit by Tata Sumo being driven by accused, learned court below rightly did not hold the accused guilty of having committed offence punishable under Ss. 279, 337, 338 and 304A IPC.
3. After having scanned entire evidence led on record, this court finds no illegality or infirmity in the judgment of acquittal recorded by learned Court below, which appears to be passed on the basis of proper appreciation of the evidence, same is upheld, in result whereof, the appeal fails and is dismissed. Bail bonds, if any, furnished by the accused are discharged.
(Sandeep Sharma), Judge December 16, 2021 (vikrant) ::: Downloaded on - 31/01/2022 23:26:39 :::CIS