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2001 DIGILAW 350 (HP)

STATE OF H. P. v. RAVINDER

2001-11-23

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- The State has preferred the present appeal against the judgment dated 28.6.1997 passed by the learned Additional Chief Judicial Magistrate, Mandi whereby the respondent - accused (hereafter referred to as the accused) has been acquitted of the accusations under Sections 279,3371 and 338 IPC. 2. Case of the prosecution, in brief, is that on 13.12.1994, Meera Devi (PW-1) along with her daughter Disha Devi (PW-2) was returning to her house from her parents house and was waiting for a bus at Panarsa. In the meanwhile, a deity also came there. When they were paying obeisance to the deity, the accused who was driving Van No. HP 02-3171 from Manali side, struck the said vehicle against PW-2. The accident occurred because of the rash and negligent driving of the said vehicle by the accused. PW-2 who sustained simple as well as grievous injuries was removed to a nearby hospital at Mangwarn and was then brought to hospital at Mandi in the van, of the accused. PW-2 was medically examined by Dr. L.D. Vaidya (PW-7) and her x-ray films were taken by Dr. Mrs. Jaya Vaidya (PW-6) in Zonal Hospital, Mandi. As per the MLC Ex.)PW-7/A issued by PW-7 as many as 7 injuries, one of which was grievous, were found on the person of PW-2. The occurrence was reported by PW-1 to ASI Tanjan (PW-10) of Police Station, Aut vide her statement Ex.PW-1/A on the basis of which formal FTR Ex.PW-9/A was registered at Police station Aut. On investigation, the investigating agency found that the accused had caused simple as well as grievous hurts to PW-2 by rashly and negligently driving the aforesaid vehicle, therefore, a charge sheet under Sections 279,337 and 338 IPC was submitted by officer incharge, Police Station, Aut against the accused to the concerned court. 3. The accusations under Sections 279, 337 and 338, IPC were put to the accused to which he pleaded not guilty. To prove the accusations, the prosecution examined as many as 10 witnesses. 4. Accused was examined under Section 313 Cr.P.C. wherein he denied the allegations of being rash and negligent in driving the van and attributed the accident to the negligence on the part of PW-2. He, however, has not led any defence evidence. 5. To prove the accusations, the prosecution examined as many as 10 witnesses. 4. Accused was examined under Section 313 Cr.P.C. wherein he denied the allegations of being rash and negligent in driving the van and attributed the accident to the negligence on the part of PW-2. He, however, has not led any defence evidence. 5. The learned trial Magistrate, after appreciation of the material brought on record, came to the conclusion that accusations against the accused were not proved and accordingly acquitted the accused, Hence, the present appeal. 6. I have heard the learned Assistant Advocate General for the State and the learned counsel for the accused and have also gone through the records. 7. There is no dispute that the accident occurred when the accused was driving the concerned vehicle and in the accident PW-2 sustained simple and grievous injuries. The dispute is that according to the prosecution the accident and the resultant injuries to PW-2 were caused because of the rash and negligent driving of the vehicle by the accused whereas according to the accused the accident occurred because of the negligence on the part of PW-2. Thus, the only question, which requires determination in this appeal, is whether the accused was driving the vehicle in question in a rash and/or negligent manner. As is well settled, rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act, with recklessness or in difference as to the consequence. Criminal negligence on the other hand is the gross and culpable neglect of failure to exercise that reason and proper care and the prosecution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. 8. To prove that the accident in question occurred because of rash and/or negligent driving of the vehicle by the accused, the prosecution examined Meera Devi (PW-1), Disha Devi (PW-2), Bahadur Singh (PW-3), Budhi Singh (PW-4) and Yadvinder (PW-5), who are the eye-witnesses of the occurrence. PW-1 has stated that the vehicle was being driven at a speed in a negligent manner. PW-1 has stated that the vehicle was being driven at a speed in a negligent manner. PW-3 has stated that the vehicle was driven at a sufficiently high speed and so is stated by PW-5. PW-2 has not stated anything about the manner in which the vehicle was being driven. PW-4 has not supported the prosecution version and there is nothing in his statement from which it may be inferred that at the relevant time the vehicle was being drives in a rash and negligent manner. On the contrary, he has stated that the injured came running and struck against the vehicle. He is though father of the accused but despite his not having supported the prosecution version regarding rash and negligent driving, the prosecution has not got him declared hostile nor sought any permission to cross-examine him and thus accepted his statement as it is. In view of his unchallenged statement and the injured herself not stating anything about the manner in which the vehicle was being driven by the accused the statements of PW-1, PW-3 and PW-5 calls for a closer scrutiny. 9. It is admitted by PW-1 in her cross examination that when PW-2 was offering flowers to the deity she was standing by her side towards Manali i.e. the direction from where the vehicle was coming. She has further admitted that at that time she and PW-2 were surrounded by so many other persons and they were paying obeisance to the deity when the van struck against PW-2. This position has been admitted by PW-3 in his cross-examination. From these admissions it clearly emerges that while paying her obeisance to the deity PW-2 was surrounded by so many other persons, including her mother, and they were standing by her side towards Manali from where the van was coming. In such a situation, it is apparently not possible that the vehicle would hit PW-2 who was surrounded by so many persons particularly even on the direction from where the vehicle was coming without causing any injury to any other person. This circumstance creates grave doubts about the version that the prosecutrix was hit by the vehicle when she was offering flowers to the deity. It appears that the facts, place and situation of the accident has deliberately been twisted. This circumstance creates grave doubts about the version that the prosecutrix was hit by the vehicle when she was offering flowers to the deity. It appears that the facts, place and situation of the accident has deliberately been twisted. The defence of the accused is that PW-2 was running towards the bus when she struck against the back side of the vehicle being driven by him. This defence has been put to all the material witnesses. There is no dispute that PW-1 and PW-2 were waiting for a bus at Panarsa Bus Stop and they were to board the bus they were waiting for to go towards their destination. It is admitted by PW-2 that when she was paying obeisance to the deity the bus she was to board alongwith her mother had come on the spot. The arrival of the bus on the spot is admitted by PW-1 also. PW-2 has further admitted that she had struck against the back part of the van which the accused was driving. The version of the accused that the girl was running towards the bus and struck against the backside of the vehicle, the accused was driving, thus becomes most probable. 10. It can be inferred from the material on record that the statement of PW-1 under Section 151 Cr.P.C. Ext.PW-1/A is the result of deliberations and act of other unknown persons. PW-1 has clearly and unambiguously stated that the matter was reported to the police by other persons though she had also accompanied them and police recorded Ext.PW-1/A on which her thumb mark was obtained. In the cross- examination, she has claimed about certain other facts having been stated to the police which do not find mention in Ext.PW-1/A. It cannot, therefore, be stated that the first Information Report in fact contains the version of PW-1 which also raise serious doubts about the correctness of the version of the prosecution. 11. It may be pointed out that an Appellate Court in an appeal against acquittal has to proceed more cautiously while appreciating the evidence and interfere with an order of acquittal only if there is absolute assurance of the guilt of the accused on the material brought on record. 11. It may be pointed out that an Appellate Court in an appeal against acquittal has to proceed more cautiously while appreciating the evidence and interfere with an order of acquittal only if there is absolute assurance of the guilt of the accused on the material brought on record. However, in view of the above discussion, the material on record does not lend any assurance to the y guilt of the accused, rather it creates doubts about the correctness of the prosecution version regarding the alleged rashness and negligence on the part of the accused in driving the vehicle and the learned trial Magistrate has, thus, rightly concluded so. 12. In view of the above discussion and conclusions, the impugned judgment does not call for any interference. 13. As a result, this appeal merits dismissal and is accordingly dismissed.