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2012 DIGILAW 278 (HP)

State Of Himachal Pradesh v. Vinod Kumar

2012-05-14

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. The respondent hereinafter to be referred as "the accused" was convicted by the learned trial Court for the offences punishable under Sections 279 and 337 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of three months and fine of Rs. 1,000/- under Section 279 of the Indian Penal Code and simple imprisonment for three months and fine of Rs. 500/- with default clause under Section 337 of the Indian Penal Code, which on appeal, was set-aside by the learned Sessions Judge vide his detailed judgment passed on 18.11.2004. Consequently, the accused was acquitted. Now the acquittal of the accused has been assailed by the State in the present appeal. 2. Precisely, the facts giving rise to this appeal can be stated thus. On 11.11.1997, around 6 p.m., PW1 Rajesh Singh along with his brother PW2 Bhagwan Singh pillion rider on a Bicycle was going on the left side of the road. When they reached near the brick Kiln of Shri Lajja Ram at Kirpalpur, a Tempo truck allegedly being driven by the accused hit the bicycle, resulting into injuries to the cyclist and its pillion rider and damaged the bicycle. Rajesh Singh aforesaid became unconscious and was immediately removed to the Jain Hospital, Nalagarh. Police was informed and the hospital. After getting the fitness certificate of the Rajesh Singh, the police got recorded his statement under Section 154 of the Code of Criminal Procedure Ext.PW1/A. (ii) HC Kirpa Ram forwarded the Ruka for the registration of the case, which culminated into FIR Ext.PW8/A. Complainant was medically examined. He suffered simple injuries on his person as detailed in the Medico Legal Certificate Ext.PW1/B and qua Bhagwan Singh is mentioned in Ext.PW2/A. (iii) On 14.11.1997, the Tempo truck bearing registration No. HP-12-2536 was taken into possession vide memo Ext.PW9/A in the presence of Nek Ram and Joginder Singh. It was mechanically examined from PW5 Pritam Singh. He did not find any mechanical defect as such issued report Ext.PW5/A. (iv) The photographs of the spot Ext.PW3/A to D were taken on the spot showing the bicycle lying on the road after the accident. The photographs Ext.PW10/A1 to Ext.PW10/A4 were taken on 14.11.1997 wherein the Tempo in question was shown parked with the defaced registration number, displayed in the front and back of the Tempo, to destroy evidence. The photographs Ext.PW10/A1 to Ext.PW10/A4 were taken on 14.11.1997 wherein the Tempo in question was shown parked with the defaced registration number, displayed in the front and back of the Tempo, to destroy evidence. Police found the involvement of the accused for the aforesaid offences including the offence punishable under Section 201 of the Indian Penal Code, as such, after completing the investigation, challan was presented in the Court for the trial of the accused. 3. Finding a prima-facie case under Sections 279, 337 and 201 of the Indian Penal Code, learned trial Court charge-sheeted the accused, to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He took up the stand that on 11.11.1007, he was not driving the vehicle in question and also denied the other circumstances, which were put to him, however, he did not lead any evidence in defence. 5. At the end of trial, learned trial Court convicted and sentenced the accused for the offences punishable under Sections 279 and 337 of the Indian Penal Code as aforesaid, believing the statement of PW10-A Rajinder Kumar owner of the alleged offending vehicle qua extra judicial confession, however, acquitted him for the offence punishable under Section 201 of the Indian Penal Code. 6. In appeal, learned first Appellate Court did not consider the statement of PW10A Rajinder Kumar, but however, on the other evidence on record, observed that there was no clinching evidence to prove that the accused at the relevant time was driving the vehicle in question rashly and negligently and as such reversed the aforesaid findings of guilt, acquitting the accused. 7. Shri A.K. Bansal, learned Additional Advocate General vehemently argued that the learned Sessions Judge did not at all appreciate the statement of Rajinder Kumar, the owner of the Tempo-truck in question, who categorically stated that on the day of the alleged accident, accused was the driver of the truck and admitted causing of accident and payment of Rs. 200/- to the victim this fact was not challenged in the cross-examination by the accused, therefore, the identity of the accused and the offences stand established. Further the rash and negligent driving of the truck in question in view of the statement of injured/victim also stands proved. 8. Contra, Ms. 200/- to the victim this fact was not challenged in the cross-examination by the accused, therefore, the identity of the accused and the offences stand established. Further the rash and negligent driving of the truck in question in view of the statement of injured/victim also stands proved. 8. Contra, Ms. Soma Thakur, learned counsel supported the impugned judgment of acquittal passed by the learned Sessions Judge and submitted that the aforesaid alleged extra judicial confession is very weak type of evidence and cannot be believed, especially when the accused is no more his employee. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 10. It is a settled legal proposition that in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse i.e. the conclusions of the Courts below are contrary to the evidence on record, or its entire approach in dealing with the evidence is patently illegal, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate Court should interfere with the order of acquittal. While doing so, the apex Court has passed a word of caution in State of U.P. v. Mohd. Iqram & Anr. [ AIR 2011 SC 2296 ] that the appellate Court should bear in mind the presumption of innocence of the accused and further that the acquittal by the Courts below bolsters the presumptions of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 11. In the instant case, PW1 Rajesh Singh although in examination-in-chief stated that the accused was rashly and negligently driving the vehicle in question and had hit his bicycle causing injuries to him, but pertinently, in cross-examination, he stated that he did not personally know the accused and even on the day of the alleged accident, he did not see him driving the vehicle in question. PW2 Bhagwan Singh is his real brother and admitted that the claim case has been filed by both of them. PW4 Rameshwar is another eye witness, who in cross-examination stated that he did not see the accident in question nor he knew the accused personally. PW2 Bhagwan Singh is his real brother and admitted that the claim case has been filed by both of them. PW4 Rameshwar is another eye witness, who in cross-examination stated that he did not see the accident in question nor he knew the accused personally. He stated that he came to know about the name of the accused during the night of the day of alleged accident. He also stated that he never saw the accused driving the vehicle in question. According to him, the injured remained in the hospital for the night and police came next day, despite the fact that he had informed the police on the previous night. 12. Statement of PW1 Rajesh Singh Ext.PW1/A recorded under Section 154 of the Code of Criminal Procedure does not reveal the name of the accused and the registration of the vehicle involved in the said accident. If they had come to know about the name of the accused and about the vehicle involvement in the accident, it is not known what prevented him to mention it in the FIR itself. Further the vehicle in question was taken into possession on 14.11.1997, then how the police came to know that the said vehicle was involved in the accident is also not established. The alleged extra judicial confession made to the owner of the truck Rajinder Kumar (PW10A) is only to the fact that on 13.11.1997 the accused had told him about the accident having taken place and he had paid Rs. 200/- to the victim. Although this fact has not been challenged in the cross-examination, but such type of evidence is weak of nature especially when the accused is not in the employment of PW10-A. Although it was also a circumstance attendant upon to the accused to which accused owed explanation which fact has not been put to him in his statement under Section 313 Cr.P.C. and is not at all discussed by the learned Sessions Judge. 13. The Supreme Court in Mohd. Iqram & anothers case supra held that the attention of the accused must specifically be brought to inculpatory pieces of evidence to give him opportunity to offer explanation if he chooses to do so. In other words, it is legally obligatory on the part of the Court to put incriminating circumstances before accused and solicit his response. Iqram & anothers case supra held that the attention of the accused must specifically be brought to inculpatory pieces of evidence to give him opportunity to offer explanation if he chooses to do so. In other words, it is legally obligatory on the part of the Court to put incriminating circumstances before accused and solicit his response. The apex Court held that this provision is mandatory in nature and castes an imperative duty on the Court and confers a corresponding right on the accused. Circumstances not put to accused in his examination under Section 313 of the Code of Criminal Procedure cannot be used against him. Even otherwise the material prejudice is caused to the accused by not putting this circumstance as this is the important circumstance to link him with the alleged offence. Since the accident took place in the year 1997, thus it would be a futile exercise to again seek his response to this circumstance in view of the other circumstances on the record. Accordingly, I did not find it a case worth interference in acquittal of the accused for the reasons mentioned herein above. The appeal filed by the State is devoid of any merit, hence dismissed. 14. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. 15. Send down the records.