Himachal Pradesh High Court
State Of Himachal Pradesh vs Shashi Bhushan on 24 December, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MPM No. 849 of 2015 .
Date of Decision: December 24, 2015 State of Himachal Pradesh ...Appellant.
Versus
Shashi Bhushan ...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, for the appellant-State.
For the Respondent: Nemo.
Sanjay Karol, J (oral).
Entire trial Court record perused and returned to the learned Additional Advocate General.
2. In relation to FIR No.101/2008, dated 04.06.2008, registered at Police Station, Dharamshala, District Kangra, H.P., accused Shashi Bhushan, was charged to face trial for having committed offences punishable under the provisions of Sections 336, 337 and 338 of the Indian Penal Code.
3. Vide judgment dated 03.05.2012/04.05.2012, passed by Chief Judicial Magistrate, Kangra at Dharamshala, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:35:40 :::HCHP 2District Kangra, H.P., titled as State of H.P. Versus Shashi Bhushan, accused was convicted and sentenced / pay fine as under:-
.
Sections Sentence & fine
Section 336 of IPC. The accused was convicted
sentenced to undergo simple
imprisonment for a period of one
month and to pay a fine of `100/-
and in default of payment of fine to of further undergo simple imprisonment for a period of seven days.
Section 337 of IPC. The accused was convicted and sentenced to undergo simple rt imprisonment for a period of one month and to pay a fine of `500/-
and in default of payment of fine to further undergo simple imprisonment for a period of fifteen days.
Section 338 of IPC. The accused was convicted and sentenced to undergo simple imprisonment for a period of two months and to pay a fine of `500/- and in default of payment of fine to further undergo simple imprisonment for period of one month.
4. In an appeal preferred by the convict, such judgment stands reversed and as such, accused stands acquitted.
5. Assailing the judgment passed by Additional Sessions Judge-II, Kangra at Dharamshala, District Kangra, H.P., on 25.03.2015, in Cr.Appeal No. 30-D/X/2012, titled as Shashi Bhushan Versus The State of Himachal Pradesh, whereby accused Shashi Bhushan stands acquitted, State ::: Downloaded on - 15/04/2017 19:35:40 :::HCHP 3 has filed the present leave to appeal under the provisions of Section 378 (3) of the Code of Criminal Procedure, 1973.
6. It is the case of prosecution that on 04.06.2008, .
at about 12.15 PM , Sewak Ram (PW.1), lodged a complaint at Police Station, Dharamshala, District Kangra, H.P., that on account of rash and negligent act and condu ct of accused Shashi Bhushan, he sustained injuries. Allegedly while he of was riding motorcycle bearing No.HP-39-8781 alongwith pillion rider Ramanand (PW.4), accused, who had parked his rt Maruti Car bearing No.HP-39-A-0498 on the road, without taking any due care and caution, suddenly opened the door of the car, which hit the motorcycle. The complainant was got medically examined through Dr.Bharti Gupta (PW.12).
MLCs (Ex.PW.12/A & Ex.PW.12/B) of the victims are on record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.
7. Notice of accusation was put to the accused for having committed offences punishable under the provisions of Section s 336, 337 and 338 of IPC, to which he did not plead guilty and claimed trial.
8. In order to establish its case, in all, prosecution examined as many as twelve witnesses. Statement of the accused under Section 313 of the Code of Criminal ::: Downloaded on - 15/04/2017 19:35:40 :::HCHP 4 Procedure was also recorded, in which he took plea of false implication.
9. Having heard Mr. R.S. Verma, learned Additional .
Advocate General , on behalf of the State and having minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution, I am of the considered view that no case for of interference is made out at all. The judgment rendered by the Appellate Court is based on complete, correct and rt proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
10. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution.
Having considered the material on record, I am of the considered view that prosecution has failed to establish the essential ingredients so required to constitute the charged offence.
11. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, ::: Downloaded on - 15/04/2017 19:35:40 :::HCHP 5 unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
.
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the of Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the rt witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
12. In the instant case, Anil Dogra (PW.3) and Deepak Guleria (PW.6) who are the star eye witnesses have not supported the prosecution case. It is denied by them that accused, without taking any due care and caution, all of a sudden, opened the door. They were extensively cross-
examined by the Public Prosecutor, but nothing fruitful could be elicited from their testimonies.
13. From the testimony of Investigating Officer Pritam Chand (PW.9), it is apparent that even the complainant was not holding a valid and effective driving ::: Downloaded on - 15/04/2017 19:35:40 :::HCHP 6 licence to drive the motorcycle. No doubt, Sewak Ram (PW.1) and Ramanand (PW.4) have deposed that accused was negligent in opening the door of the vehicle, but then .
through the testimonies of independent witnesses, different version has come on record.
14. Not only that , lower Appellate Court in para 17 of the judgment has considered the documentary evidence on of record while coming to the conclusion that accused was not guilty of the offences in question.
15. rt The version of the complainant that door of the vehicle was opened with great force, resulting into the motorcycle being hit violently cannot be said to be inspiring in confidence, in view of lack of telltale signs on the vehicles.
16. Court does not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence that accused while sitting in Car No.HP-39-A-0498 committed a rash and negligent act so as to endanger human life and personal safety of others by opening the door of the said vehicle resulting in colliding of motorcycle bearing No.HP-39-8781 coming from behind against the said opened door causing simple hurt to complainant Sewak Ram (PW.1) and simple as well as grievous hurt to pillion rider Ramanand (PW.4).
::: Downloaded on - 15/04/2017 19:35:40 :::HCHP 717. 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 the lower Appellate Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
of
18. The accused has had the advantage of having been acquitted by the lower Appellate Court. Keeping in rt view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it cannot be said that trial 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 leave to appeal, being devoid of merit, is dismissed, so also the pending application(s), if any.
(Sanjay Karol),
December 24, 2015 Judge.
(Purohit)
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