Himachal Pradesh High Court
State Of H.P vs Surinder .......... ... on 7 May, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 84 of 2018
Date of Decision: 01.05.2018
______________________________ _______________________________________
.
[
State of H.P. .........Appellant
Versus
Surinder .......... accused/Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellant: Mr. Dinesh Thakur, Additional Advocate General
and Mr. Vikrant Chandel, Deputy Advocate
General.
For the respondent: Mr. D.S. Nainta, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Complainant namely Pushpa Devi (PW1) in her statement recorded under Section 154 Cr.PC to the police, alleged that on 28.4.2012, she along with her son namely Rahul, got down from the bus near Victory Tunnel to board the bus for IGMC Shimla. She further alleged that when she was coming towards local bus-stand from victory tunnel and was crossing the road with her son to reach the bus stand, at about 9:15 am, accused driving yellow colored bus No. HP63-3050 banged the driver side of his bus with the complainant and her son, as a consequence of which, they fell unconscious and fell down. Constable Pardeep Kumar PW2 sent both the complainant and her son to IGMC in a Taxi. On the basis of aforesaid statement made under Section 154 Cr.PC, formal FIR Ext.PW9-A, came to be registered against the respondent-accused. After completion of investigation, police presented Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -2-challan in the competent Court of law, who on being satisfied that prima-
facie case exists against the accused, put notice of accusation to the accused under Sections 279, 337 and 338 of IPC, to which he pleaded not .
guilty and claimed trial. However, fact remains that he did not lead any evidence in his defence.
2. Learned trial Court on the basis of evidence collected on record by the prosecution held the accused not guilty of having committed offence punishable under Sections 279, 337 and 338 of IPC and accordingly, acquitted him. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, praying therein for conviction of the accused-respondent after setting aside judgment of acquittal recorded by the court below.
3. Mr. Vikrant Chandel, learned Deputy Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the learned trial Court, vehemently contended that same is not based upon proper appreciation of evidence and as such, same deserves to be quashed and set-aside. While referring to the evidence led on record by the prosecution, Mr. Chandel, strenuously argued that prosecution successfully proved beyond reasonable doubt that on the date of alleged incident, vehicle in question was being driven rashly and negligently by the respondent accused, as a result of which, complainant and her son suffered simple as well as grievous injuries. While terming the impugned judgment to be erroneous, learned Deputy Advocate General contended that all the material prosecution witnesses unequivocally stated before the court below ::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -3- that incident occurred on account of rash and negligent driving of the respondent-accused and as such, there was no scope left for the court below to acquit the respondent accused, rather he was required to be convicted .
for having committed offence punishable under Sections 279, 337 and 338 of IPC.
4. Per contra, Mr. D.S.Tanta, Advocate, representing the accused-
respondent supported the impugned judgment of acquittal recorded by the court below and contended that bare perusal of same suggests that same is based upon proper appreciation of evidence and there is no illegality and infirmity in the same and as such, there is no scope of interference, especially when it clearly emerges from the bare reading of the impugned judgment that court has dealt with each and every aspect of the matter very meticulously. Mr. Tanta, invited attention of this Court to the statements of prosecution witnesses to demonstrate that none of the prosecution witnesses specifically stated something specific with regard to rash and negligent driving of the accused, and as such, learned court below rightly arrived at conclusion that prosecution was not able to prove beyond reasonable doubt that complainant and her son suffered injuries on account of rash and negligent driving of the respondent-accused.
5. Having heard learned counsel for the parties and gone through the record, this Court finds that there is no dispute as far as factum of accident allegedly occurred on 28.4.2012 is concerned and similarly, there is no error in the finding recorded by the court below that on the date of alleged incident, vehicle in question was being driven by the accused ::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -4- respondent. Question which remains to be decided/adjudicated by this court is that whether learned court below rightly arrived at conclusion that vehicle in question was not being driven rashly and negligently by the .
respondent-accused on the date of alleged incident or not?
6. Needless to say, to prove guilt of the accused, if any, under Section 279 of IPC, it was incumbent upon the prosecution to prove that vehicle was being driven in rash and negligent manner so as to endanger human life or likely to cause injury to other persons. Similarly, Section 337 of IPC provides that to prove commission of offence, it is required to be proved that hurt is caused to any person due to an act done rashly and negligently as to endanger human life or personal safety of others. In the instant case, this Court after having perused evidence led on record by the prosecution finds no such evidence led on record by the prosecution. None of the prosecution witness has stated something specific with regard to rash and negligent driving of the respondent-accused at the time of alleged incident.
7. PW1 in her statement reiterated the story of prosecution that on 28.4.2012, when she was going to IGMC, Shimla along with her son for his checkup, a bus being driven by the respondent accused hit her and her son from the driver side, as a consequence of which, they fell unconscious and were taken to the hospital. She in a very casual manner stated that accident took place due to rash and negligent driving of the accused but in cross-
examination, she admitted that bus from where she got off from the bus at victory tunnel was also going to bus-stand. She also stated that bus was being driven by the driver on the right side and she herself noted down the number ::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -5- of the bus, but it has also come in her cross-examination that there is no bus stoppage near the victory tunnel round about. She also stated that when she had to go to IGMC from Totu by victory tunnel, then there was no requirement .
of crossing the road.
8. Careful perusal of aforesaid version put forth by PW1 creates doubt with regard to the correctness of story put forth by the prosecution. On the one hand, PW1 claims that after being hit by bus, she fell unconscious and on the other hand, she stated that she herself noted down the number of the bus. Similarly, it has come in her cross-examination that she was going to IGMC for check up of his son and bus in which she was travelling was coming to the old bus stand and as such, it is not understood when she had to go to the old bus stand to catch the bus where was the occasion for her to get down at victory tunnel and go on foot to get the bus from the old bus stand.
9. PW2 Constable Pardeep Sharma, supported the version put forth by PW1 that on 28.4.2012, bus bearing No. HP63-3050, coming from old bus stand from Tutikandi busstand, hit the victim (PW1) and her son, whereupon he stopped one taxi and sent the victims to the IGMC. In his cross examination, he admitted that accident happened 50 meters away from the victory tunnel. He also stated that bus was moving on the right side. Most interestingly, this witness admitted that in the spot map bus is shown in the wrong side, because as per factual position, bus was moving on the other side. This witness also admitted that incident took place in a rush area and there were number of vehicles on the road.
::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -6-10. PW5 (I.O.) also admitted that there is no bus stoppage at a place, where accident took place. He also admitted that victim was never brought to the spot by the Investigating Officer. PW 7 and PW8, who are .
witnesses to fard also did not support the version put forth by the prosecution.
PW7 has categorically admitted that accident did not take place in his presence and he cannot tell as to how accident took place. PW8, who also happened to be witness to fard, is the driver of taxi, in which victims were taken to IGMC. He admitted that he did not see the accident and cannot tell how the accident took place. He also resiled from his statement being witness to fard. In his cross examination, he has admitted that his statement was recorded by the police and he had signed the fard.
11. Having perused versions put forth by the aforesaid witnesses, it is quite apparent that there are material contradictions and inconsistencies in the statements made by these witnesses, especially spot map Ext.PW5/B, which is totally contrary to the factual position existing on the spot at the time of alleged accident. Moreover, victim was never brought to the spot at the time of preparing spot map. At the time of accident, none was present except PW2 and all the witnesses are the witnesses, who came to be associated at the time of investigation and had no occasion to see the accused. PW2 in his cross-examination categorically admitted that accident took place 50 meters away from the victory tunnel. He also admitted that accident took place in a rush area and there were number of vehicles on the road. It is not understood that when number of vehicles were present at the ::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -7- time of alleged incident, what prevented the police from associating other independent witnesses.
12. In the case at hand, entire story put forth by the prosecution .
appears to be untrustworthy and full of contradictions. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the 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 and 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. Reliance is also placed on Judgment passed by the Hon'ble Apex Court in C. Magesh and Ors. v.
State of Karnataka (2010) 5 SCC 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 emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 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."
46. 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 situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses."
::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -8-13. Leaving everything aside, this Court is unable to lay its hand to any specific statement made by these aforesaid prosecution witnesses with .
regard to the rash and negligent driving, if any, by the respondent accused at the time of the accident. As has been observed herein above, it is/was incumbent upon the prosecution to prove guilt of the accused under Section 279 IPC that vehicle was being driven in rash and negligent manner as to endanger human life or likely to cause injury to other persons. Similarly, prosecution is/was also required to prove that hurt is caused due to an act done rashly and negligently so as to endanger human life or personal safely of others. But interestingly, in the case at hand, both the conditions as taken note herein above, are missing. Though PW1 in a very casual manner has stated that accident took place due to rash and negligent driving of the respondent-accused, but she has nowhere stated in what manner vehicle was being driven rashly and negligently. She has not stated something specific with regard to the speed of the vehicle. Otherwise also, it has come in the statement of PW2 that accident took place in rush area, meaning thereby, it can be presumed that vehicle was being driven in a normal speed.
14. In the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:-
::: Downloaded on - 08/05/2018 23:08:51 :::HCHP -9-"6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no .
evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.
8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
15. The Hon'ble Apex Court in case titled "State of Karnataka v.
Satish,"1998 (8) SCC 493, has also observed as under:-
"1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum.
While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka.
2. We have examined the record and heard learned counsel for the parties.
3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high ::: Downloaded on - 08/05/2018 23:08:51 :::HCHP
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speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed"
does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by .
"high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed."
16. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur.
17. The Hon'ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285, has held as under:
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"15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is .
prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents.
'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010].
20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that ::: Downloaded on - 08/05/2018 23:08:51 :::HCHP
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necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as :
The event would not have occurred but for someone's negligence.
The evidence on record rules out the possibility that actions .
of the victim or some third party could be the reason behind the event.
Accused was negligent and owed a duty of care towards the victim."
18. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, relevant para whereof is as under:
"4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road.
As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial."::: Downloaded on - 08/05/2018 23:08:51 :::HCHP
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19. No doubt, in the case at hand, prosecution has proved on record that in the alleged accident, complainant suffered simple as well as .
grievous injuries, but as has been noticed above, guilt of the accused for having committed offence punishable under Section 338 of IPC, is required to be proved by the prosecution by proving on record that grievous hurt is caused to any person due to an act done rashly and negligently as to endanger human life or personal safety of others, but unfortunately in the case at hand, no such evidence is led on record.
20. PW4 and PW3 doctors, who medically examined the victim and her son Rahul, no doubt opined that victim suffered simple as well as grievous injury, but that may not be sufficient to hold the respondent-accused guilty of having committed offence punishable under Sections 279, 337 and 338 of the IPC, especially when prosecution has not been able to prove beyond reasonable doubt that victim suffered injuries on account of rash and negligently driving of the respondent-accused.
21. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, this Court sees no reason to differ with the well reasoned judgment passed by the learned court below which appears to be based upon the proper appreciation of evidence adduced on record and the same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.
1st May, 2018 (Sandeep Sharma),
manjit Judge
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