Himachal Pradesh High Court
Bunti Lal vs State Of Himachal Pradesh on 30 July, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 55 of 2009
Decided on: July 30, 2019
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____________________________________________________________
Bunti Lal .........Petitioner
Versus
State of Himachal Pradesh ...Respondent
____________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
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For the petitioner: Dr. Lalit K. Sharma, Advocate.
For the respondent: Mr. Sanjeev Sood and Mr. Sudhir
Bhatnagar, Additional Advocates
General with Mr. Kunal Thakur,
Deputy Advocate General.
____________________________________________________________
Sandeep Sharma, J. (oral)
Instant criminal revision petition under S.397 read with S.401 CrPC, lays challenge to judgment dated 5.3.2009 passed by learned Additional Sessions Judge, Solan, Himachal Pradesh in Criminal Appeal No. 24-S/10 of 2008 affirming the judgment dated 26.6.2008 passed by learned Judicial Magistrate 1st Class, Kasauli, Solan, Himachal Pradesh in Case No. 128/2 of 2007, whereby learned trial Court held petitioner-accused (hereinafter, 'accused') guilty of having committed offences punishable under Ss.279 and 337 IPC and S.187 of the Motor Vehicles Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 2Act and accordingly convicted and sentenced him in the following manner:
.
Section Sentence Fine In default of
payment of fine
279 IPC Six months Rs.1000 One month
simple imprisonment
imprisonment
337 IPC Six months Rs.500 One month
imprisonment
187 of the Motor Two months Rs.500 Ten days
Vehicles Act
2. Precisely, the facts as emerge from the record are that on 9.10.2006, PW-1 Arvind Kashyap informed Police Station, Kasauli that his younger brother, Arun Kashyap (PW-2), who was riding a scooter bearing registration No. HP14A-2396, has been hit by a Truck bearing registration No. HP-64-0996 being driven in high speed by the accused.
He further alleged that after accident, accused fled away from the spot with the truck. On the basis of the aforesaid statement/complaint made by complainant, PW-1, Arvind Kashyap, a formal FIR Ext. PW-10/A dated 9.10.2006 came to be lodged against the accused under Ss.279 and 337 IPC and S.187 of the Motor Vehicles Act. After completion of investigation, Police presented Challan in the competent Court of law, who being satisfied that a prima facie case exists against the accused, put notice of accusation to the accused for the commission of the offences punishable under ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 3 aforesaid provisions of law, to which accused pleaded not guilty and claimed trial.
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3. Prosecution with a view to prove its case examined as many as ten witnesses, whereas accused in his statement recorded under S.313 CrPC, though admitted the factum with regard to accident but claimed that the accident occurred on account of rash and negligent driving of the rider of the Scooter. He did not lead any evidence in his defence.
Learned trial Court, on the basis of evidence collected on record by the prosecution, held the accused guilty of having committed offence punishable under Ss.279 and 337 IPC and S.187 of the Motor Vehicles Act, and accordingly convicted and sentenced him as per description given herein above.
Being aggrieved and dissatisfied with the judgment of conviction recorded by learned trial Court, accused preferred an appeal before learned Additional Sessions Judge, Solan, who vide judgment dated 5.3.2009, dismissed the appeal, as a consequence of which judgment of conviction and sentence passed by learned trial Court came to be upheld. In the aforesaid background, accused has approached this Court in the instant proceedings, seeking his acquittal after setting aside judgment of conviction and sentence passed by learned trial Court and affirmed by learned first appellate Court.
::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 44. Having heard learned counsel for the parties and perused the material available on record, vis-à-vis reasoning .
assigned by learned Courts below, while holding the accused guilty of having committed offences punishable under aforesaid provisions of law, this court is persuaded to agree with Dr. Lalit K. Sharma, learned counsel for the accused that since there was no positive evidence, if any, led on record by prosecution to the effect that the offending vehicle was being driven rashly and negligently by the accused at the time of alleged accident, learned Courts below ought not have held him guilty.
5. It is well settled by now that rashness and negligence cannot be presumed, rather, onus is always upon the prosecution to prove the same beyond reasonable doubt.
Apart from above, mere rashness and negligence are not sufficient for holding accused guilty of having committed offences punishable under Ss.279 and 337 IPC, rather it is criminal rashness and negligence on the part of the accused, which constitutes commission of such offence, as have been defined in the aforesaid provisions of law. In a catena of judgments, this Court as well as Hon'ble Apex Court have held that speed is not the sole criteria to hold that vehicle in question was being driven rashly and negligently, rather, ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 5 specific evidence is required to be led on record by prosecution in this regard. In the case at hand, record clearly .
reveals that the complaint with regard to alleged incident came to be lodged at the behest of PW-1, Arvind Kashyap, who was not present on the spot. His own statement, which ultimately culminated into FIR, Ext. PW-10/A, clearly reveals that he having received telephonic information from his brother, Arun Kashyap, who allegedly suffered injuries as well as damage to his Scooter, lodged complaint stating therein that the incident in question occurred on account of rash and negligent driving of the accused. Keeping in view the fact that PW-1 was not an eye witness to the alleged accident, learned Court below ought not have placed much reliance upon the version put forth by this witness, because, admittedly, he had no occasion to see the accident with his own eye. There is another aspect of the matter that since no serious injury ever came to be suffered by PW-2, Arun Kashyap in the accident, it is not understood, what prevented him from lodging FIR. Though, Dr. Lalit K. Sharma, learned counsel for the accused made an attempt to persuade this Hon'ble Court, to agree with his contention that the factum with regard to accident is in dispute but, as has been taken note herein above, accused, in his statement under S.313 ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 6 CrPC, has admitted the factum with regard to his accident as such, plea raised by Dr. Lalit K. Sharma deserves outright .
rejection. Moreover, PW-6, Tej Pal, who was Conductor in the Truck being driven by the accused, has also admitted that after alleged accident, they had fled away from the scene, but this witness has denied the factum with regard to damage/injury, if any, suffered by victim (PW-2) Arun Kashyap. Though, this witness was declared hostile but even the cross-examination conducted upon this witness nowhere proves the case of the prosecution that at the time of alleged incident, vehicle in question was being driven in a rash and negligent manner.
6. Aforesaid witness, in his cross-examination, has stated that the accident occurred on a spot, where road is narrow and in the alleged accident, no injury was caused to PW-2, Arun Kashyap. Even the Investigating Officer (PW-10), in his cross-examination has stated that there is a curve where alleged accident took place.
7. PW-2 Arun Kashyap, victim, has also admitted that there was a curve on the site of alleged accident.
8. PW-3 Ram Singh, Mechanical Examiner, while proving Mechanical Report, Ext. PW-3/A, dated 10.10.2006, has categorically stated that no signs of accident were ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 7 detected on the offending vehicle, which admittedly came to be apprehended immediately after alleged accident by the .
Polie.
9. PW-2, Arun Kashyap stated that at the time of alleged accident, 10-12 people had gathered at the spot but none of such persons, ever came to be associated as independent witnesses and no explanation, whatsoever, has been rendered by IO, PW-10 that why he failed to associate independent witnesses, especially when they were available in abundance. None filing of the complaint by victim himself, especially when he did not receive any injury, compels this court to agree with Dr. Lalit K. Sharma that no actual damage was caused to the Scooter being driven by Arun Kashyap, PW-2, but subsequently on the complaint of Arvind Kashyap, PW-1, who is stated to be a Press Reporter, case came to be registered against the accused. Aforesaid conclusion as has been drawn by this Court is further fortified/substantiated with the statement of PW-10, IO, who in his cross-examination has categorically admitted that they had received instructions from the office of Additional Superintendent of Police, Solan, for registering the case.
10. Leaving everything aside, there is nothing in the statements of material prosecution witnesses that at the time ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 8 of alleged incident, offending vehicle was being driven in a rash and negligent manner as such, both the learned Courts .
below merely taking into account version put forth by prosecution witnesses that the vehicle was being driven in high speed, wrongly proceeded to hold accused guilty of having committed offences in question.
11. True it is that aforesaid witness stated that the offending vehicle was in high speed but that is not sufficient to conclude rash and negligent driving, if any, on the part of accused. High speed itself is not a criteria to conclude rashness and negligence, rather it is/was incumbent upon the prosecution to prove that offending vehicle was being driven in such rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any other person.
12. Needless to say, for the purpose of criminal law, a high degree of evidence is required before felony is established. Merely because accident took place, it can not be presumed that there was negligence on the part of driver. Act of driving must be grossly rash and negligent to such an extent that reasonable inference can be drawn about the same likely to endanger human life or cause hurt or injury to another person.
::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 913. 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.
14. 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:-
r "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 ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 10 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."
15. 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:-
r "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 ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 11 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 accident has actually taken place, has not been ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 12 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."
16. 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."
17. 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 ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 13 reasonable doubt that ill fated vehicle was being driven by 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.
18. Though, in the case at hand, PW-2 Arun Kashyap and PW-1 Arvind Kashyap claimed that in the alleged accident, rider of the Scooter, PW-2 suffered injuries, but record reveals that he nowhere came to be medially examined as such, injuries if any, suffered by PW-2 Arun Kashyap never came to be proved in accordance with law. Nowhere any positive evidence, if any, ever came to be led with regard to damage if any caused to Scooter being driven by PW-2 Arun Kashyap, rather, to the contrary, as has been taken note, Mechanical Examiner, while proving report, Ext. PW-
3/A, has categorically stated that no signs of accident were noticed on the offending vehicle. Record further reveals that the Scooter in question which allegedly was damaged, on account of being hit by the offending vehicle, never came to be impounded by the Police. PW-1, Arvind Kashyap has ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 14 admitted in his cross-examination that after alleged accident, scooter was taken to Solan.
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19. By now it is well settled that in a criminal trial evidence of eyewitness 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 touchstone of consistency. In this regard, reliance is placed upon the 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 ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP 15 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 r that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses."
20. Consequently, in view of detailed discussion made herein above, revision petition is accepted. judgment dated 5.3.2009 passed by learned Additional Sessions Judge, Solan, Himachal Pradesh in Criminal Appeal No. 24-S/10 of 2008 affirming the judgment dated 26.6.2008 passed by learned Judicial Magistrate 1st Class, Kasauli, Solan, Himachal Pradesh in Case No. 128/2 of 2007 is quashed and set aside. Accused is acquitted of the offences alleged against him. Bail bonds, if any, furnished by him are cancelled.
All pending applications, if any, are disposed of.
(Sandeep Sharma) Judge July 30, 2019 (vikrant) ::: Downloaded on - 29/09/2019 01:31:05 :::HCHP