Himachal Pradesh High Court
Sansar Chand vs State Of H.P on 2 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 66 of 2010.
Date of Decision: 2.12.2016.
.
___________________________________________________________
[
Sansar Chand .........Petitioner.
Versus
State of H.P. ............Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1?
For the petitioner: Mr. Rajesh Mandhotra, Advocate.
For the respondent:
rt Mr. P.M. Negi, Additional Advocate General
with Mr. Ramesh Thakur, Deputy Advocate
General.
____________________________________________________________________
Sandeep Sharma, J. (Oral)
The present criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC, is directed against the judgment dated 27.2.2010, passed by the learned Additional Sessions Judge, FTC, Kangra at Dharamshala, HP, in Criminal Appeal No. 8-N/X/06, affirming the judgment and order of conviction dated 13.12.2006, passed by the learned Judicial Magistrate Ist Class (1), Nurpur, District Kangra, HP, in Criminal Case No. 123-II-2000, whereby the accused-petitioner has been sentenced as per description given herein below:-
"Section 279 of IPC To undergo rigorous imprisonment for three months and to pay fine of Rs. 500/-. In default, to further undergo simple imprisonment for 15 days.
Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -2-
Section 304-A of IPC To undergo rigorous imprisonment for six months for offence under Section 304-A IPC and to pay a fine of Rs. 1000/- and in default, to further undergo simple imprisonment for one month.
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2. Briefly stated facts as emerge from the record are that the complainant Hari Dass, who at that relevant time was employed as driver in "Jintu Tantrik University Temple, Sidhwari, got his statement Ext.PW2/A, recorded under Section 154 of the Cr.PC to the police of stating therein that on 5.5.2000, he was coming from 'Sidhwari' to 'Pathankot' in Truck bearing No. HP-53-3152, owned and possessed by rt the aforesaid temple, along with its cleaner Sonam Dorje for the purpose of taking bricks and around 5.45 am, when he reached the place near 'Bodh', one Mahindra Jeep, bearing No. HP-53-1820 (herein after referred to as the offending vehicle) came from 'Jassur' side in an excessive speed, which was being driven by the petitioner accused.
The complainant further stated that petitioner accused could not control the offending vehicle and by leaving his own lane, dashed against the truck in question, being plied by the complainant. As per the complainant, accused as well as another occupant of offending vehicle namely Santosh Kumar (deceased) suffered injuries on their person on account of aforesaid accident. They were immediately taken to Civil Hospital, Nurpur for treatment, however, fact remains that Santosh Kumar later on succumbed to injuries. Complainant further ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -3- stated that from the hospital, one Mr. Rajnish Chander informed the Police Station, Nurpur about the accident. Police on the basis of .
aforesaid information entered rapat No. 38, Ext.PW9/A in the daily diary and thereafter ASI Subhash Chand, I.O. along with other police personnel reached the spot and recorded statement of the complainant under Section 154 of the Cr.PC. On the basis of the of aforesaid complaint, formal FIR Ext.PW10/A was lodged at P.S. Nurpur against the accused. After completion of investigation, police came to conclusion that accident occurred due to rash and negligent driving of rt the petitioner accused, and accordingly, presented the challan under Sections 279, and 304-A of the IPC read with Section 182 of the Motor Vehicles Act, 1988, before the competent court of law.
3. Learned Judicial Magistrate Ist Class (1), Nurpur, District Kangra, (HP), after satisfying itself that prima facie case exists against the accused put a notice of accusation, to which he pleaded not guilty and claimed trial. Learned trial Court on the basis of evidence adduced on record by the prosecution, found the accused guilty of having committed offence under the aforesaid Sections and convicted and sentenced him as per description already given above.
4. The present petitioner-accused being aggrieved with the judgment of conviction passed by the learned trial Court, filed an appeal under Section 374 of Cr.PC before the Court of learned ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -4- Additional Sessions Judge, FTC, Kangra at Dharamshala, HP, who vide judgment dated 27.2.2010, dismissed the appeal. Hence, this criminal .
revision petition before this Court.
5. Mr. Rajesh Mandhotra, Advocate, representing the petitioner vehemently argued that the impugned judgments of conviction and sentence recorded by the Courts below are not of sustainable as the same are not based upon the correct appreciation of evidence available on record, as such, same cannot be allowed to sustain. Mr. Rajesh, further contended that bare perusal of the rt impugned judgments clearly suggest that same are based upon conjectures and surmises and as such, same deserves to be quashed and set-aside. While referring to the judgments passed by the courts below, Mr. Rajesh strenuously argued that evidence adduced on record has not been appreciated in its right perspective as a result of which, great prejudice has been caused to the petitioner, who is admittedly, an innocent person. With a view to substantiate his aforesaid argument, Mr. Rajesh made this Court to travel through the evidence led on record by the prosecution to demonstrate that none of the PWs especially, PW1 and PW2 who were driver and cleaner of the truck in question, with which the offending vehicle struck, nowhere stated that the offending vehicle was being driven by the petitioner accused, rather both the aforesaid PWs, feigned ignorance with regard ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -5- to the identity of the driver of the offending vehicle. As per Mr. Rajesh, since prosecution was not able to prove the identity of driver who was .
allegedly driving the offending the vehicle, no conviction, if any, could be recorded by the courts below that too merely on the basis of statement having been made by the petitioner accused stating therein that accident occurred due to rash and negligent driving of the driver of of the truck. He also invited attention of this Court to the statements of independent witness i.e. PW3 Mulkh Raj to demonstrate that he nowhere supported the case of the prosecution, rather in unequivocal rt terms stated that at the time of accident, truck in question being driven by the complainant was being driven in zigzag manner and jeep coming towards uphill side was in slow speed and on its own side.
While placing reliance upon so called independent witness associated by the prosecution, Mr. Rajesh strenuously argued that no conviction against the petitioner could be recorded merely on the basis of statements of PW1 and PW2 who were admittedly employee of one institution and at that relevant time, were travelling in truck in one and same vehicle. In the aforesaid background, he prayed for acquittal of the petitioner after setting aside the judgment of conviction recorded by the courts below.
6. Per contra, Mr. P.M. Negi, learned Additional Advocate General, duly assisted by Mr. Ramesh Thakur, learned Deputy ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -6- Advocate General, representing the respondent-State supported the impugned judgments passed by the courts below. He vehemently .
argued that bare perusal of the impugned judgments suggests that same are based upon the correct appreciation of the evidence available on record and prosecution has been able to prove its case beyond reasonable doubt and courts below have very meticulously of dealt with each and every aspect of the matter. He further contended that in the given facts and circumstances of the case, no interference, whatsoever, of this Court, is warranted, especially, in view of the rt concurrent findings of facts as well as law, recorded by the courts below. With a view to refute contentions having been put forth by the counsel representing the petitioner, Mr. Negi invited attention of this Court to the statements of PW1 and PW2 to demonstrate that they had identified the petitioner accused, who at that relevant time was driving the offending vehicle. He further stated that bare perusal of statement of accused recorded under Section 313 Cr.PC, itself suggests that offending vehicle in question was being driven by the petitioner accused and as such, there is no illegality and infirmity in the judgments passed by both the courts below. Mr. Negi, also reminded this Court of its limited powers while exercising its revisionary powers under Section 397 of the Cr.PC to re-appreciate the evidence, especially, when it stands duly proved on record that the courts below have dealt with ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -7- each and every aspect of the matter very meticulously. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in .
case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri"
(1999) 2 Supreme Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting of miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well rt as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
7. I have heard learned counsel for the parties as well carefully gone through the record
8. True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused has been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -8- Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices .
that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior of criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-
8.rt The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
10. During the proceedings of this case, this Court had an occasion to peruse the entire evidence led on record by the prosecution, perusal whereof, clearly suggests that courts below have not properly appreciated the evidence in its right perspective, rather courts below miserably failed to take note of the fact that none of the occupants of truck in question against which, offending vehicle allegedly dashed, nowhere stated anything with regard to identity of ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP -9- the petitioner-accused, who was allegedly driving the offending vehicle (jeep) at that relevant time. It clearly emerge from the .
judgments passed by the courts below that they completely ignored the aforesaid material omission on the part of the material witnesses (PW1 and PW2) with regard to identification of driver of offending vehicle rather, courts below erroneously placed reliance on the plea of taken by the petitioner accused that it was the complainant, who was driving his truck in rash and negligent manner and the complainant was at fault for committing the accident in question. It is well settled rt that prosecution has to stand on its own legs to prove its case and no benefit, if any, can be drawn from the weakness of defence. True, it is that petitioner accused, in his statement claimed that the complainant was driving truck in rash and negligent manner and he was at fault for committing the accident at question but to my mind, it could not be sufficient for courts below to conclude that at that relevant time, vehicle in question was being driven by the petitioner accused, especially, when none of the PWs stated something specific with regard to identification of driver of the offending vehicle. PW1 and PW2 stated that they were going to 'Pathankot' for bringing bricks in their truck on highway and one jeep being driven by the petitioner -
accused came from the opposite direction and hit against the truck of the complainant. But if their, cross examination, is read in its entirety, ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP
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they have feigned ignorance with regard to identity of driver, who was driving the offending vehicle. Both the aforesaid PWs i.e. PW1 and PW2 .
in their cross examination nowhere stated that vehicle in question was being driven by the petitioner accused.
11. PW3 independent witnesses, Mulkh Raj, nowhere supported the case of prosecution, rather in his statement, he stated of that the complainant i.e. driver of truck was driving his vehicle in zigzag manner and accused had kept his vehicle in left side of the kacha portion of the road and accident took place due to negligence of rt driver of the truck. Though, aforesaid witness was declared hostile by the prosecution but if his statement, is read in its entirety, it definitely gives strength to the stand having been taken by the petitioner-
accused that alleged accident took place due to rash and negligent driving of the complainant, who at that relevant time was driving the truck.
12. After carefully examining the entire facts and circumstances, this Court has no hesitation to conclude that both the courts below failed to place due reliance upon the statement of PW3, i.e. independent witness, especially, in view of the fact that both PWs 1 and PW2 were employees of one institution and in one way or other, they were associated to each other. Since, truck was being driven by PW2 himself, no much reliance could be placed upon his statement in ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP
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the absence of corroboration, if any, by some authentic independent witness, especially, in view of stand taken, by the petitioner accused .
that at that relevant time truck in question being driven by the complainant, was being driven rashly and negligently and that was the cause of accident. As far as deposition of PW1 Sonam Dorje is concerned, same is also not confidence inspiring because while of narrating the sequence of event as deposed by PW1, he failed to prove the identity of driver of the offending vehicle i.e. Jeep.
13. Otherwise also complete reading of depositions made by rt the PW1 and PW2 nowhere suggests that same are confidence inspiring and trustworthy. It is not understood that once after the accident, as per version of these witnesses, occupants of offending vehicle were removed from the vehicle and sent to Hospital, why in their cross-examination, they feigned ignorance with regard to identity of the accused, who was allegedly driving the vehicle at that relevant time. It has also come on record that at that relevant time, offending vehicle was up hill side whereas truck being driven by the complainant was being driven downhill. It can be taken note of the fact that vehicle coming uphill may not be in high speed, rather, truck which was admittedly coming down hill may be in excessive speed as stated by PW3 independent witness Mulkh Raj.
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14. This Court after examining the aforesaid aspect of the matter, does not deem it necessary to examine/analyze the entire .
evidence adduced on record, available on record, because, it is ample clear from the statements having been made by PWs 1 and 2, who at that relevant time, were travelling in truck, prosecution failed to prove the identity of the petitioner accused. Both the PWs 1 and 2 in of their statements have not stated specifically that offending vehicle was being driven by the petitioner accused at that relevant time. Rather, PW1 in his statement stated that though, he had taken driver and rt injured person to hospital but he cannot recognize the driver of the offending vehicle. PW1 also stated that he did not ask name of driver of the offending vehicle. Similarly, PW2 could not state specifically with regard to driver of offending vehicle. He further stated that perhaps accused was the driver of offending vehicle.
15. Hence, this Court, after examining the statements of PWs 1 to 3, sees considerable force in the contentions having been put forth by the counsel representing the petitioner that since identity of the accused was not established, no conviction, if any, could be recorded by the courts below.
16. Evidence discussed herein above is sufficient to hold that in given facts and circumstances, two views are possible in the present case and as such present petitioner-accused is entitled to the benefit ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP
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of doubt. In the present case, prosecution story does not appear to be plausible/ trustworthy and as such same cannot be relied upon. In this .
regard, I may refer to the judgment passed by the Hon'ble Apex Court reported in State of UP versus Ghambhir Singh, AIR 2005 (92) SCC 2440, wherein Hon'ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused of must be preferred. The relevant paragraph is reproduced as under:-
"6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The rt High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, he evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour o the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred."
17. The Hon'ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:-
"25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue.
26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner ::: Downloaded on - 15/04/2017 21:40:39 :::HCHP
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of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed.
27.Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was .
pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature."
18. Consequently, in view of the detailed discussion as well as law referred herein above, this Court sees substantial force in the of criminal petition preferred by the petitioner and as such, same is allowed. Accordingly, judgments passed by the Courts below are rt quashed and set-aside. Petitioner accused is acquitted of the charges so framed against him. Bail bonds discharged. Interim order, if any, vacated. All applications, if any, also stand disposed of.
2nd December, 2016 (Sandeep Sharma),
manjit Judge.
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