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Himachal Pradesh High Court · body

2012 DIGILAW 18 (HP)

Rajneesh Kumar v. State Of Himachal Pradesh

2012-01-05

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. 1. This revision has been filed against judgment dated 1.2.2005 passed by learned Sessions Judge, Hamirpur in Criminal Appeal No. 20 of 2004 affirming judgment dated 1.9.2004 passed by learned Judicial Magistrate 1st Class, Barsar in Case No. 120-1/2003/85-II of 2003 convicting the petitioner for offences punishable under Sections 279, 337, 338 IPC and Section 192 of the Motor Vehicles Act and sentencing the petitioner to undergo simple imprisonment for six months and fine of Rs. 500/-for offence punishable u/s 279 IPC, simple imprisonment for six months and fine of Rs. 500/- for offence punishable u/s 337 IPC, simple imprisonment for six months and fine of Rs. 500/- for offence punishable u/s 338 IPC and fine of Rs. 2,000/- for offence punishable u/s 192 of the Motor Vehicles Act with default clauses. 2. The prosecution case, in brief, is that on 9.9.2003 at about 8.45 a.m. some unknown person gave a telephonic information at Police Post, Deotsidh about the accident near Bijher, report Ex.PW-9/B was lodged. The statement Ex.PW-1/A of injured PW-1 Sanjiv Kumar was recorded u/s 154 Cr.P.C. He has stated that he along with his father PW-2 Kashmir Singh were travelling on motor cycle No. HP-21-0378 on 9.9.2003. At about 8.00 a.m. near Dughar Bazar they saw jeep No. HP-19B-0113 coming from Salouni side. The jeep hit the motorcycle as a result of which both PW-1 and PW-2 sustained injuries. The jeep was being driven by the petitioner, who took the injured to the hospital after the accident. It has been stated that accident took place due to rash and negligent driving of the petitioner. 3. On the basis of statement u/s 154 Cr.P.C, FIR Ex.PW-11/B was registered. The MLCs Ex.PW-7/A and Ex.PW-7/B of the injured were obtained. The spot map Ex.PW-11/A was prepared. The registration certificate of the vehicle was not produced by the petitioner. On completion of investigation, challan was submitted in the Court. 4. The notice of accusation was put to the petitioner who pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The statement of petitioner was recorded u/s 313 Cr.P.C. He denied the prosecution case.DW-1 Desh Raj was examined in defence. On conclusion of trial the learned Judicial Magistrate on 1.9.2003 convicted and sentenced the petitioner as noticed above. The notice of accusation was put to the petitioner who pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The statement of petitioner was recorded u/s 313 Cr.P.C. He denied the prosecution case.DW-1 Desh Raj was examined in defence. On conclusion of trial the learned Judicial Magistrate on 1.9.2003 convicted and sentenced the petitioner as noticed above. The appeal filed by the petitioner before the learned Sessions Judge was dismissed on 1.2.2005, hence revision. 5. I have heard the learned counsel for the parties and have also gone through the record. PW-1 Sanjiv Kumar has stated that on 9.9.2003 at about 8.00 a.m. he was driving motorcycle, his father Kashmir Singh was also sitting on the motorcycle. Jeep No. HP-19B-0113 ahead of Dughar at about 8.00 a.m. struck the motorcycle, he fell down. He sustained injuries on right shoulder, his father sustained injuries on nose and face. The motorcycle was also damaged. The driver of the jeep took both of them to Primary Health Centre, Bijher. The petitioner was driving the jeep. The accident took place due to the fault of the petitioner. He made statement Ex.PW-1/A. In cross-examination, he has stated that his statement was recorded in the hospital. He reported the matter to the police through telephone at about 9.30 a.m. At the place of accident, there is a curve. He stated that the motorcycle struck the tree and fell down, volunteered first of all jeep hit the motorcycle directly and then fell down. He denied that he and his father sustained injuries when the motorcycle fell down. He denied that one Chain Singh was driving the jeep. 6. PW-2 Kashmir Singh has stated that on 9.9.2003 at about 8.00 a.m. they were ahead of Dughar, jeep came in high speed, his son stopped the motorcycle on side drain of the road but jeep hit the motorcycle. He sustained injuries on his head and broke his nose also. They fell down, accident took place due to negligence of the jeep driver. In cross-examination he has stated that except driver there was no other person in the jeep. He denied that Chain Singh was the driver of the jeep. 7. PW-3 Ashwani Kumar is a witness to the recovery of broken pieces of motorcycle Ex.P-1 vide memo Ex.PW-3/A. In cross-examination, he has stated that when he reached the spot Sanjiv Kumar and Kashmir Singh were there. He denied that Chain Singh was the driver of the jeep. 7. PW-3 Ashwani Kumar is a witness to the recovery of broken pieces of motorcycle Ex.P-1 vide memo Ex.PW-3/A. In cross-examination, he has stated that when he reached the spot Sanjiv Kumar and Kashmir Singh were there. PW-4 Dr. Anil Kaushal has given report Ex.PW-4/A after examining X-ray film of Kashmir Singh in which no fracture has been shown. PW-5 Suresh Kumar, Radiographer took X-ray film of Kashmir Singh. PW-6 Jag Mohan Sharma, Mechanic has stated that on 11.9.2003 he examined vehicle No. HP-19B-0113 and issued report Ex.PW-6/A. he also examined motorcycle HP-21-0378 and gave report Ex.PW-6/B. PW-7 Dr. Shashi Dutt examined Sanjiv Kumar and Kashmir Singh and issued MLCs Ex.PW-7/A and Ex.PW-7/B. The injuries are possible in motor cycle accident. PW-10 Surinder Kumar has proved photographs Ex.PW-10/A to Ex. PW-10/C. 8. PW-11 Jagdish Kumar, Head Constable, has stated that on 9.9.2003 information was received at Police Post, Deotsidh that an accident has taken place near Bijher between jeep and motorcycle. He and HHC Ram Nath reached the spot. Kashmir Singh was not in a position to make statement. Ex.PW-1/A is the statement of Sanjiv Kumar u/s 154 Cr.P.C. The spot map Ex.PW-11/A was prepared. In cross-examination, he has stated that in spot map mark C is Dughar Bazar. Suresh Kumar a person from the Bazar was joined in the investigation. He denied that jeep driver was Chain Singh. The jeep was not on the spot when he reached there. 9. The petitioner in his statement u/s 313 Cr.P.C. has stated that accident did not take place with the Jeep. The injured were lying on the road, 3-4 persons asked him to take them to Primary Health Centre, Bijher. He is innocent. DW-1 Desh Raj has stated that on 9.9.2003 he was sitting on the counter in Bijher Bazar, jeep came alongwith newspapers, Chain Singh was driving the jeep and Rajneesh was sitting in the jeep. In cross-examination, he has stated that Dugar Bazar is at a distance of 8 KMs from Bijher. He does not know who was driving the jeep No. HP-19B-0113 at Dughar Bazar. 10. Ex.PW-1/A is the statement u/s 154 Cr.P.C. of PW-1 Sanjeev Kumar. In cross-examination, he has stated that Dugar Bazar is at a distance of 8 KMs from Bijher. He does not know who was driving the jeep No. HP-19B-0113 at Dughar Bazar. 10. Ex.PW-1/A is the statement u/s 154 Cr.P.C. of PW-1 Sanjeev Kumar. He has stated that at about 8.00 a.m. a little ahead of Dugar Bazar on a curve a jeep No. HP-19B-0113 coming from Salouni side hit the motorcycle, he and his father Kashmir Singh, who were on the motorcycle fell down and both of them sustained injuries. The jeep driver took both of them to Primary Health Centre, Bijher. The accident took place due to rash and negligent driving of jeep driver. Ex.PW-11/B is the FIR registered on the basis of statement Ex.PW-1/A. Ex.PW-11/A is the spot map. The mark B in spot map Ex.PW-11/A indicates skid marks XY of jeep No. HP-19B-0113. The point C in spot map is the place of accident and point D is the place where motorcycle after accident was lying. 11. Ex.PW-1/A statement u/s 154 Cr.P.C. is the first version of PW-1. In this statement PW-1 has not stated that on seeing the jeep he stopped the motorcycle in the drain just touching the road and there jeep hit the motorcycle. He has also not stated that jeep was on wrong side. PW-1 in his statement in the Court has stated that accident took place due to the fault of the petitioner and wrong side driving. In the Court, he has not stated that petitioner was driving the jeep in high speed. He projected the case that petitioner was driving the jeep on the wrong side. The statement of the petitioner in the Court is in contradiction to the first version given by him in his statement u/s 154 Cr.P.C. 12. PW-2 Kashmir Singh has stated that on seeing the jeep his son stopped the motorcycle in the drain touching the road where the jeep coming in high speed hit the motorcycle. PW-1 neither in his statement in the Court nor in his statement recorded u/s 154 Cr.P.C. has stated that on seeing the jeep he stopped the motorcycle in the drain touching the road. Thus the very foundation of the accident and the manner in which accident took place, PW-1 and PW-2 have given different statements. 13. PW-1 neither in his statement in the Court nor in his statement recorded u/s 154 Cr.P.C. has stated that on seeing the jeep he stopped the motorcycle in the drain touching the road. Thus the very foundation of the accident and the manner in which accident took place, PW-1 and PW-2 have given different statements. 13. The jeep was not at the place of accident when investigating officer reached the spot. PW-1 and PW-2 have not stated that skid marks XY at point B in spot map Ex.PW-11/A are of the jeep at the time of the accident. There is no worth-believing evidence to link the skid marks XY with the jeep No. HP-19B-0113. It is nobodys case that only jeep No. HP-19B-0113 crossed over the road. It has not been explained on what basis the investigating officer in the spot map Ex.PW-11/A has shown skid marks XY at point B. 14. It has come in the statement of PW-11 Jagdish Kumar, Investigating Officer that Suresh Kumar a person from the Bazar was joined in the investigation. This witness was given up by the prosecutor on the ground that he has been won over by the petitioner, but no corroborative material has been placed on record to show that in fact Suresh Kumar was won over by the petitioner. He was the only independent witness who could have thrown light how the accident has taken place. 15. The prosecution story is unbelievable in view of statement of PW-2, who has stated that PW-1 was driving the motorcycle on his own side and on seeing the jeep he stopped the motorcycle in the drain touching the road and jeep came there struck the motorcycle. This means, the jeep as per PW-2 was on the extreme wrong side. There is no reason why the jeep should go to so extreme wrong side. It is nobodys case that jeep came on extreme wrong side while saving some person or animal or to avoid another accident and then hit the motorcycle nor it is the prosecution case that petitioner was absolutely novice and could not control the vehicle which drifted from left to extreme wrong side. This creates suspicion in the entire prosecution story. 16. No doubt, PW-1 and PW-2 have sustained injuries. PW-1 and PW-2 have not come out with true version of the accident. This creates suspicion in the entire prosecution story. 16. No doubt, PW-1 and PW-2 have sustained injuries. PW-1 and PW-2 have not come out with true version of the accident. The prosecution has thus not established accusation for offence punishable under Sections 279, 337, 338 IPC. The copy of RC Ex. DX of the offending vehicle was brought on record in the Court below vide order dated 23.7.2004. The prosecution did not raise any objection when copy of RC Ex.DX was tendered in evidence, therefore, the Courts below have erred in ignoring Ex. DX on the ground that it cannot be considered in evidence for want of proof. Once the Ex. DX has been taken on record without objection, therefore, prosecution later on cannot be heard to say that Ex. DX has not been proved. In P.C. Purushothama Reddiar Vs. S. Perumal, (1972) 1 SCC 9 , it has been held that it is not open to a party to object the admissibility of documents which are marked as exhibits without any objection from such party. Thus, offence u/s 192 of the Motor Vehicles Act, 1988 has also not been established against the petitioner. 17. The two courts below have misconstrued and misinterpreted the evidence on record in convicting and sentencing the petitioner. The prosecution has failed to prove the case against the petitioner beyond reasonable doubt. The petitioner is entitled to benefit of doubt. The impugned judgment affirming judgment of the trial court is not sustainable and is liable to be set-aside. 18. The result of above discussion, the revision is allowed, judgment dated 1.2.2005 passed by learned Sessions Judge, Hamirpur in Criminal Appeal No. 20 of 2004 affirming judgment dated 1.9.2004 passed by learned Judicial Magistrate 1st Class, Barsar in Case No. 120-1/2003/85-II of 2003, is set-aside. The petitioner is acquitted of the accusation under Sections 279, 337, 338 IPC and Section 192 of the Motor Vehicles Act. The fine amount, if any, deposited by the petitioner be refunded to him, his bail bonds are discharged.