Himachal Pradesh High Court
State Of Himachal Pradesh vs Ashok Kumar on 27 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 67 of 2008.
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Date of decision: 27th May, 2019.
State of Himachal Pradesh .....Appellant.
Versus
Ashok Kumar ...Respondent/Accused.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Appellant : Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs., with Mr.
Bhupinder Thakur, Ms. Svaneel
Jaswal, Dy. A.Gs., and Mr. Ram Lal
Thakur, Asstt. A.G.
For the Respondent : Mr. Ramakant Sharma, Senior
Advocate, with Ms. Devyani
Sharma, sAdvocate.
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the judgment of acquittal passed by the learned Additional Chief Judicial Magistrate, Hamirpur on 9.7.2007 in Police Challan No. 102-I-2000/40-II-2007, the State has filed the instant appeal.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 2
2. Brief facts of the case are that on 9.2.2000, the Medical Officer, Zonal Hospital, Hamirpur reported to the police that some .
persons were brought to the hospital in an injured condition for their treatment. On this, SI/SHO, Mehar Chand, ASI Swami Ram alongwith C. Ashok Kumar No.231, C. Suresh Kumar, No.182 went to Zonal Hospital, Hamirpur. The police submitted an application for obtaining the opinion of the doctors for recording the statements of injured Abha Devi, Radha Devi and Mangla Ram, but the doctor opined that they were not able to give the statement. Upon this, the complainant Shayama Ram son of Manak Ram got recorded his statement under Section 154 Cr.P.C. wherein he alleged that on 10.2.2000 at about 10.00 p.m. he was sleeping in his hut and in the meantime he heard noise of falling of a truck on the hut of his father Manak Ram. His father, mother Abha Devi, sister Radha Devi, brother Birbal were in the hut and his father was pressed under the truck and died on the spot, whereas his mother and sister sustained injuries. The complainant further alleged that his brother Mangla Ram, who was sleeping in the hut also sustained injuries.
The truck was lying on the spot and the dead body of his father was also lying under the truck. The driver of the truck was Ashok Kumar son of Sh. Sher Singh, resident of Dhalaria, who was also pulled out from the truck in an injured condition. The accused/respondent was ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 3 also taken to the hospital and it was alleged that the accident has taken place due to the rash and negligent driving of the truck driver .
as he had consumed the alcohol and the smell was emitting from his mouth.
3. ASI Swami Ram sent the Rukka to the Police Station and on the basis of which case FIR under Sections 279, 337, 338 and 304 A IPC came to be registered against the respondent. The investigation was handed over to SI Mehar Chand, who visited the spot and prepared the site plan and got recorded the statement of the witnesses. The Investigating Officer has also medically examined the injured and obtained the postmortem reports of Abha Devi, Radha Devi and Manak Ram, who were died and MLC report of Mangla Ram, who had sustained simple and grievous injuries. The I.O. also got the accused medically examined and obtained his MLC report No.255/00 in which the doctor had given opinion that the accused had consumed alcohol for which he was additionally charged for offence punishable under Section 185 of Motor Vehicles Act. The vehicle of the accused alongwith documents was taken into possession and mechanical report qua the same was also obtained.
The I.O. had also taken the photographs of the truck and on completion of investigation, presented the challan before the Court.
::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 44. In order to prove its case, the prosecution examined 10 witnesses. Thereafter, the statement of the accused under Section .
313 Cr.P.C. was recorded. The accused however, led no evidence in his defence.
5. After evaluating the oral as well as documentary evidence on record, the learned trial Magistrate acquitted the accused/respondent, constraining the State to file the instant appeal.
6. to It is against the judgment of acquittal passed by learned trial Magistrate, the instant appeal has been filed by the State mainly on the ground that the findings recorded by the learned trial Magistrate are erroneous inasmuch as it has failed to view the prosecution evidence in its proper perspective and at the same time has set unrealistic standards to evaluate the direct and cogent prosecution evidence. Even otherwise, the reasoning of the learned trial Court is manifestly unreasonable and unsustainable. Moreover, even if there was absence of any direct evidence, the learned trial Court ought to have applied the principle of res ipsa loquitor.
7. On the other hand, learned counsel for the respondent/ accused has supported the judgment passed by the learned trial Court as the same is on the basis of correct appreciation of the ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 5 evidence on record and being an appeal against acquittal, this Court should interfere only if the same is perverse.
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I have heard the learned counsel for the parties and have also gone through the material placed on record.
8. At the out-set, it needs to be observed that the appellate Court should be very slow in setting aside the judgment of acquittal unless it arrives at a clear evidence of marshalling the entire evidence on record that the judgment of the trial Court is either perverse or wholly unsustainable in law.
9. Before proceeding any further, this Court is required to consider whether the principles of res ipsa loquitur can be pressed into service for determining per se liability for negligence in criminal law.
10. This question in fact is no longer res integra in view of the orders passed by this Court on 03.01.2019 in Cr. Appeal No. 693 of 2008 alongwith Cr. Appeal No. 143 of 2007 and Cr. R. No. 172 of 2011, wherein it was held as under:
"Heard.
One of the issues involved in the case is whether the principle of res ipsa loquitur can be pressed into service for determining per se the liability for negligence in criminal law.
2. Both the sides have placed reliance on the following judgments:-::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 6
1. Syad Akbar vs. State of Karnataka (1980) 1 SCC 30.
2. Mohammed Aynuddin alias Miyam vs. .
State of A.P. (2000) 7 SCC 72.
3. Thakur Singh vs. State of Punjab (2003) 9 SCC 208.
4. Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1.
5. Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284.
6. B. Nagabhushanam vs. State of Karnataka (2008) 5 SCC 730.
7. Jayshree Ujwal Ingole vs. State of Maharashtra and another (2017) 14 SCC 571.
3. Out of all the judgments cited above, the judgment in Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1, has been rendered by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court, wherein it has been held that the rule of res ipsa loquitur cannot be pressed into service for determining per se the liability in criminal negligence. It shall be apt to reproduce relevant observations:-
"27. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of Tort. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 7 defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies .
on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (see Syad Akbar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishan vs. State of Kearala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned Judges constituting the Bench has in his concurring opinion merely stated "res ipsa liquitur". Nowhere has it been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved by resorting to the said rule. In our opinion, a case under Section 304-A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
18.8 Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 8 service of determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur .
has, if at all, a limited application in trial on a charge of criminal negligence.
4. It is more than settled that the decision rendered by a Larger Bench of any Court prevails over the judgment rendered by a strength of lesser number of judges.
5. Now to come up for arguments on 07.03.2019."
11. Now, adverting to the merits of the case, it would be noticed that the prosecution in order to prove its case examined PW-1 Dr. Rajesh Sharma, M.O. Zonal Hospital, Hamirpur. He deposed that he had medically examined deceased Abha Devi, Radha Devi, Manak Ram, Mangla Ram and also accused Ashok Kumar and issued MLCs Ex.PW-1/A to Ex.PW-1/D, respectively and deposed that the persons injured in this accident had sustained simple as well as grievous injuries on their person.
12. PW-2 Dr. P.C.Verma is the Radiologist, who proved the report Ex.PW-2/A and found fracture of ribs and further proved his report Ex.PW-2/B and Ex.PW-2/C relating to Mangla Ram.
13. PW-3 Parshotam Lal has mechanically examined the truck and issued his report Ex.P-3/A. PW-4 Dilbag Singh was the ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 9 witness to the seizure memo Ex.PW-4/A vide which truck was taken into possession.
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14. PW-5 Mehar Chand is the I.O., who investigated the case and deposed that on the information he had gone to the hospital where after lodging the rapat Ex.PW-5/A, SHO filed an application for obtaining the consent of the doctor for recording the statements of injured which was refused. Thereafter, he recorded the statement of Shayama Ram under Section 154 Cr.P.C., Ex.PW-5/C. The rukka was sent to Police Station for registration of the case. He also got extracted the dead body of Manak Ram lying under the truck.
Thereafter, he filled the forms 25-35 Ex.PW-5/D, Ex.PW-5/E and Ex.PW-5/F and obtained the post mortem report Ext. PW-5/B, Ex.PW-
5/G and Ex.PW-5/H. The SHO went to the spot and prepared the spot map and the truck was taken into possession vide seizure memo Ex.PW-4/A. After obtaining the report of the Mechanic, he recorded the statement of witnesses as per their version and filed the present challan. In cross-examination, he denied that the accident has taken place as the retaining wall had given way.
15. PW-6 Sunita Galoda, issued postmortem report of Radha Devi, Ex.PW-6/A, Abha Devi, Ex.PW-6/B and Manak Ram Ex.PW-6/C.
16. PW-7 Shayama Ram is the complainant, who deposed that he alongwith other persons were sleeping in the tents when the ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 10 truck had fallen on their tents. His mother, sister and father were sleeping and his father died due to the fall of the truck. He further .
deposed that the accused was driving the truck and the accident had taken place due to fault of the accused. In cross-examination, he deposed that he went to the Police Station for lodging the rapat alongwith Mangla Ram and Dharma.
17. Similarly, PW-8 son of Sh. Manak Ram has also deposed on the similar lines as was deposed by PW-7 Shayama Ram.
18. The accused was also r medically examined and the doctor opined that he had taken the alcohol. Further as per the mechanical examination report all the systems were properly working in the truck. It is on that basis that the State would vehemently argue that the learned trial Court has erred in acquitting the respondent.
19. The order of acquittal deserves to be upheld for more than one reasons. Firstly, the prosecution has failed to examine any independent witnesses or rather any witness to prove the rash and negligent driving on the part of the respondent.
20. Secondly, PW-4, PW-7 and PW-8 admittedly are not even the eye witnesses to the accident in question. Moreover, the story putforth by PW-7 and PW-8 to the effect that they had gone to Police Station to get their statements recorded is contrary to the case as ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP 11 set up by the prosecution as it is on the basis of the information received from the hospital that the police learnt about the accident .
and after they visited the hospital.
21. Lastly there is no evidence from the Chemical Examiner regarding the contents of alcohol in the blood or urine. This assumes importance because admittedly the sample was sent for Chemical Analysis and having failed to prove the report on record
22. to can only lead to an adverse inference against the State.
The State has failed to point out any irregularity or illegality much less perversity in the judgment of acquittal passed by learned trial Magistrate. Consequently, there is no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any. The bail bonds, if any, furnished by the accused/respondent is discharged.
(Tarlok Singh Chauhan) 27 th May, 2019. Judge (GR) ::: Downloaded on - 31/05/2019 21:56:53 :::HCHP