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2012 DIGILAW 670 (HP)

State of Himachal Pradesh v. Manohar Lal

2012-10-03

SURINDER SINGH

body2012
Judgment Surinder Singh, J (oral): The acquittal of the respondent has been challenged by the appellant-State in the present appeal, for the offences punishable under Sections 279 and 304-A of the Indian Penal Code. 2. In short, the prosecution case is that on 6.5.2007, PW1 Ram Lal and his wife PW2 Lata Devi were accompanied by their child Ajay Kumar (deceased). Near the tree of “Chimu”, on the roadside, they were waiting for the bus and eating Chimu fruit. In the meantime, the respondent came on his Scooter bearing registration No.HP-31-4873, is alleged to have hit Ajay Kumar on the roadside as a result of which he sustained injuries and was immediately removed to the hospital, where he died. 3. The matter was reported to the police by PW1, father of the child, which culminated into the present FIR. The investigation was conducted by PW8 ASI Surender Kumar. He visited the spot, prepared site plan Ext.PW8/A, took the Scooter in possession, the autopsy of the dead-body was performed, statement of the witnesses were recorded and finally the challan was presented in the Court for the trial of the respondent. 4. Notice of accusation was put to the respondent for the offences aforesaid. He pleaded not guilty and claimed trial. To prove its case, prosecution examined the parents of the deceased, PW7 Rakesh Kumar, who did not support the case of the prosecution, doctor to prove the postmortem and the Investigating Officer. At the end of trial, respondent was acquitted for the offences aforesaid believing the stand taken that the child was unattended on the road, where he was playing with his friends and suddenly appeared before the alleged offending vehicle and got hit, thus relying upon the judgment of the apex Court in Mahadeo Hari Lokare v. State of Maharashtra [ AIR 1972 SC 221 ], the learned trial Court acquitted the respondent. 5. Shri P.M. Negi, learned Deputy Advocate General vehemently argued that the findings of the learned trial Court dehors the evidence. He pointed out the site plan as well as statements of PWs 1 and 2 and ventilated that the child was waiting for the bus with his parents on the side of the road and it is only after he was hit by the scooter he fell on the pucka portion of the road. He pointed out the site plan as well as statements of PWs 1 and 2 and ventilated that the child was waiting for the bus with his parents on the side of the road and it is only after he was hit by the scooter he fell on the pucka portion of the road. To support his point, he referred to the statements of PWs1 and 2 aforesaid. 6. I have examined the above arguments vis-à-vis the site plan prepared by the Investigating Officer and his own statement in the Court. PW1 Ram Lal stated that he alongwith his child and some more children were standing on the left side of the road, waiting for the bus and the scooter has come in a high speed and hit his son. Similar is the statement of PW2. 7. Though, it is a settled law that the speed is not a criteria to hold an accused guilty for the offence charged, but, its rash or negligent driving makes him liable for the said offence. There is a marked distinction between rash act and a negligent act. In the case of a rash act, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precaution to prevent their happening. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution 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 to have adopted, whereas, negligence implies an omission to do something which a reasonable made guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. Thus, culpable negligence is acting without the consciousness that the illegal or mischievous act will follow, but in circumstances which show that the actor or the author has not exercised the caution incumbent upon him and if he had, he would have the consciousness. The imputability arises from the neglect of civil duty and circumspection. 8. Applying the above settled proposition of law in the instant case, the facts are required to be appreciated. The deceased was alongwith his mates playing at some distance from his parents as is shown in the site plan Ext.PW8/A. PW2 mother of the deceased stated that they were standing near the “Chimu” tree and eating its fruits, meaning thereby the child was unattended with the other children. The accused in the cross-examination of the parents has also put to them that the deceased child was playing with his mates on the pucka portion of the road and dashed against his scooter which hit him though denied. Even in the cross-examination of PW1 Ram Lal, it is suggested though denied that he had also applied the breaks. Not only this, when the respondent was examined under Section 313 of the Code of Criminal Procedure, he explained the same facts to exonerate himself. His defence was consistent through act. 9. The learned trial Court on the evidence aforesaid believed the version put by the accused and thus rightly in my opinion relied upon the judgment of the apex Court rendered in Mahadeo Hari Lokare’s case supra on the strength of the evidence aforesaid. The statements of the parents are actuated by the prejudicial attitude towards the accused as their son had died in the accident, but the Court has to see whether the offence charged is made out in accordance with law and the circumstances, as already stated the facts on record are suggestive of the fact that the child was playing on the centre of the road on the pucka portion alongwith his mates, suddenly he dashed against the Scooter. These findings are based upon the evidence on record. Therefore, the acquittal of the accused cannot be interfered with, as such, the appeal is without any merit, hence dismissed. 10. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. 11. Send down the records.