Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 695 (HP)

State of Himachal Pradesh v. Rakesh Kumar

2012-10-09

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. The challenge herein is to the judgment dated 31st December, 2011, passed by learned Additional Sessions Judge, Fast Track Court, Shimla in criminal appeal No.31/10 of 2010 reversing thereby the judgment dated 28.7.2010 of learned Judicial Magistrate 1st Class, Court No.5, Shimla and to acquit the accused from the charge under Sections 279, 337 and 338 of Indian Penal Code. 2. The facts of the case noted in detail by learned Trial Magistrate and the Lower Appellate Court need not be discussed in order to avoid the repetition and suffice it to say that Kumari Seema, a young girl of aged 20 years, had met with an accident on 22.9.2005 around 9.30 a.m. at Sanjauli Chowk and sustained injuries, including grievous in nature, on her person. On the fateful day, she was on her way to Rajkiya Kanya Mahavidyala (Longwood), Shimla from her house Lower Cemetery Sanjauli, Shimla-6. She was accompanied by her friends Ms. Sarita and Aditika Chauhan and had to board a bus from Sanjauli Chowk. At Sanjauli Chowk, the complainant crossed the road from left to right and started walking along side the railing in the valley side. The offending bus bearing Registration No.HP-19B-6013 being driven by the accused from Lakkar Bazar side to Sanjauli arrived there and the complainant dragged all of a sudden came in between the bus and the railing and sustained injuries on her waist. The incident was reported to Police Station, Dhalli, on VHF Set by HHC Jeet Ram, who was present there being on traffic duty and Rapat Ex.PW-1/A came to be entered in the Rojnamcha of the Police Station. HC Rajinder Singh accompanied by HHC Jeet Ram and Lady Constable Belmu Devi rushed to the Hospital and recorded the statement of injured Seema Kumari Ex.PW-7/B. On the basis thereof FIR Ex.PW-7/D was registered. The complainant was examined in the Hospital by Dr. Hans Raj (PW-3). In the Radiology Department X-rays were conducted by Dr. Nidhi Aggarwal (PW-2). I.O. HC Rajinder Singh (PW-7) visited the spot and prepared the map Ex.PW-7/E. He has also taken into possession the driving licence of the accused (Ex.P-1) and documents of the vehicle involved in the accident Exs. P2, P-3 and P-4. He had also associated Kumari Sarita Negi PW-4 and Aditika Chauhan, PW-10 and recorded their statements under Section 161 Cr. I.O. HC Rajinder Singh (PW-7) visited the spot and prepared the map Ex.PW-7/E. He has also taken into possession the driving licence of the accused (Ex.P-1) and documents of the vehicle involved in the accident Exs. P2, P-3 and P-4. He had also associated Kumari Sarita Negi PW-4 and Aditika Chauhan, PW-10 and recorded their statements under Section 161 Cr. P.C. The offending vehicle was also got mechanically checked from PW-8, Shri Sanjeev Kumar and the report Ex.PW-8/A was obtained. The MLC Ex.PW-3/A was obtained and thereafter filed the report in the Trial Court. 3. Learned Trial Magistrate having gone through the police report and the documents annexed therewith found a prima facie case under Section 279, 337 and 338 IPC made only against the accused-respondent and put notice of accusation to him accordingly. The accused, however, pleaded not guilty. 4. Learned Trial Magistrate, after holding full trial, has recorded findings of conviction against the accused and by judgment dated 28/29.7.2010 convicted and sentenced him to undergo simple imprisonment for a period of one month and to pay fine to the tune of Rs.1000/- for commission of offence punishable under Section 279 IPC and in default of payment of fine to undergo simple imprisonment for a further period of one week. Similarly, he was sentenced to undergo simple imprisonment for a period of one month for commission of offence punishable under Section 337 IPC and simple imprisonment for a period of one month and to pay fine to the tune of Rs.1,000/- for commission of offence punishable under Section 338 IPC and in default of payment of fine to undergo simple imprisonment for a further period of one week. 5. Aggrieved by the findings of conviction and sentence, the respondent-accused approached the Lower Appellate Court by way of an appeal for quashing the same. As noticed at the very outset, the Lower Appellate Court after reappraisal of the evidence available on record and taking into consideration the legal position attracted in a case of this nature has reversed the findings of conviction recorded against the respondent accused by learned Trial Court and acquitted him from the charge. 6. As noticed at the very outset, the Lower Appellate Court after reappraisal of the evidence available on record and taking into consideration the legal position attracted in a case of this nature has reversed the findings of conviction recorded against the respondent accused by learned Trial Court and acquitted him from the charge. 6. The appellant-State aggrieved by the impugned judgment has challenged the legality and validity thereof in the present appeal on the grounds inter alia that the well reasoned judgment passed by learned Trial Court has erroneously been set aside by the Lower appellate Court while misconstruing and misreading the oral as well as documentary evidence available on record. The statements of the complainant and another eye witness DW-10 Aditika Chauhan are stated to be not appreciated properly. The findings that the prosecution has failed to prove the rash and negligent driving on the part of the respondent are stated to be not legally and factually sustainable. 7. Learned Additional Advocate General while supporting the judgment passed by the Trial Court has strenuously contended that the same being well reasoned and passed after appreciation of the evidence available on record in its right perspective, should have not been quashed and the accused acquitted. While taking this Court through the evidence available on record, it is contended that the prosecution has been able to prove its case against the accused beyond all reasonable doubts. 8. On the other hand, learned defence counsel while repelling the submissions so made on behalf of the appellant-State has contended that what to speak of cogent and reliable evidence, there is no iota of evidence suggesting that the offending bus was being driven by the respondent-accused in a high speed and in a manner, which can be termed as rash and negligent. It has been submitted that the Lower Appellate Court has rightly acquitted the accused after appreciating the evidence available on record in its right perspective. 9. Before coming to the rival contentions, it is desirable to take note of legal position attracted in a case of this nature. No doubt the Apex Court has taken a serious view in cases of this nature and at this stage it is well settled that if an offender could be held guilty with the help of the evidence cogent and reliable, in the matter of sentence, he should not be dealt with leniently but sternly. No doubt the Apex Court has taken a serious view in cases of this nature and at this stage it is well settled that if an offender could be held guilty with the help of the evidence cogent and reliable, in the matter of sentence, he should not be dealt with leniently but sternly. Such a view of the matter has been taken in view of the rising trend of road accidents. At the same time this is also well settled that the Court should not sway on mere passion and convict an offender booked for the commission of an offence of this nature on the basis of its seriousness and gravity but to record findings of conviction taking into consideration the evidence if, cogent and reliable and sufficient to suggest that there was nexus between the accident and the injury sustained by the victim, as a result of rash and negligent driving on the part of the person at the wheels of the offending vehicle. The rashness and negligence must be criminal rashness and criminal negligence certainly more than mere rashness and negligence and an error of judgment. 10. High speed of the vehicle alone is not sufficient to record findings of conviction and sentence against an offender. It is held so by a Coordinate Bench of this Court in Kushal Singh vs. State of H.P., 2009(1) Shim.L.C., 532, relevant portion of this judgment is extracted as follows:- “10. Legally, to prove the offence under the aforesaid sections, it is not the speed alone which a decisive factor, but the prosecution is obliged to prove the rash or negligent act of driving by the driver of the offending vehicle by leading a cogent and reliable evidence. {See: State of H.P. Vs. Parmodh Singh, Latest HLJ 2008 (HP) 1360} Once the rash or negligent act is established, only in that situation the onus to disprove it, shifts upon the accused to show that he had taken due care and caution to avoid the accident. Further, it must be proved that rash and 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 injury/death of a person with rash or negligent act of the accused. {See: State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538.}. 11. Further, it must be proved that rash and 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 injury/death of a person with rash or negligent act of the accused. {See: State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538.}. 11. Simply because the complainant or his relatives who were the occupants of the Van had sustained injuries in the accident by itself would not be sufficient to hold the petitioner guilty for the offences alleged against him.” 11. If coming to the constitution of an offence punishable under Sections 279 and 337 IPC, a bare perusal of the Sections ibid amply demonstrates that the driving on the part of the accused and the act should be so rash or negligent as to endanger human life or to cause hurt or injury to a third person. 12. Now, it is to be seen from the evidence collected by the investigating agency and relied upon by the prosecution that the above said legal requirement of the constitution of an offence allegedly committed by the accused respondent is proved or not. It is well established that bus No.HP 19-B-6013 was being driven by the accused-respondent. It is this vehicle, which had hit the complainant and as a result thereof she sustained injury including grievous in nature on her person. 13. The very first document relied upon by the prosecution in this matter, i.e. rapat Ex.PW-1/A, nowhere discloses that the offending bus hit the complainant on account of rash and negligent driving on the part of the accused and rightly so because the place of accident i.e. Sanjauli Chowk is a busy place and remains over crowded particularly around 9.30 a.m. being office and school/college time and also that being peak hours everybody can be seen in hurry to reach his/her respective destination, it can reasonably be believed that at least no vehicle can be plied there in a rash manner. 14. The another significant aspect that the bus was being driven uphill, leads to the only conclusion that there is no question of driving a vehicle atleast in a rash manner or in high speed at that place. 14. The another significant aspect that the bus was being driven uphill, leads to the only conclusion that there is no question of driving a vehicle atleast in a rash manner or in high speed at that place. It is also not expected from the accused respondent, who, as a matter of fact, was at the wheel of the bus, to drive the same without taking precautions and due care and rather negligently on such a place. With all sympathies towards the victim of this accident, in such a scenario, it is not possible to form an opinion that the cause of accident was rash and negligent driving alone and nothing else. 15. As noticed supra, being peak hours, the possibility of the complainant herself being in hurry, while crossing the road from right side to left in a haste and coming in contact of the bus and also there being railing on road side and as a result thereof sustaining injuries cannot be ruled out. The plea raised by the accused-respondent in his defence as emerges from the trend of cross-examination of the prosecution witnesses is also the same. The defence version thus appears to be more plausible and nearer to the factual position. Otherwise also, the victim Kumari Seema while in the witness-box as PW-6 did not utter even a single word that the offending bus was being driven by the accused in a rash and negligent manner. Her statement in examination-in-chief is thus hardly of any help to the prosecution case. 16. If the testimony of her friend Kumari Sarita Rani, PW-4, is seen, the same reveals that when they were at Sanjauli Chowk, the offending bus was being driven at its full speed and as a result thereof Seema Sharma, the complainant, came in the contact of the bus and railing and as a result thereof sustained injury. No doubt, she further stated that the accident had occurred due to rash and negligent driving on the part of the driver of the bus, however, keeping in view the position of the spot as discussed hereinabove, and also that this witness was not with the complainant at the relevant time, as she admitted in her cross-examination, it is difficult to form an opinion from her statement that the bus was being driven in a rash and negligent manner by the accused-respondent. 17. 17. If coming to the testimony of Kumari Aditika Chauhan, PW-10, no doubt the same reveals that the accident, in which the complainant received injuries on her person, had occurred due to the negligence on the part of the accused, however, she failed to explain as to how the bus was being driven rashly or in a high speed and how the accused was negligent in driving the same. If her testimony in cross-examination is seen, she has not only admitted that the place of accident is a busy place, but also stated that during morning hours, over crowding due to people going to their offices and plying of vehicles can be witnessed there. She has also admitted that every body can be seen in hurry during morning hours. 18. The evidence as has come on record by way of the testimony of the complainant and the so called eye witnesses PW-4 and PW-10, if read in its entirety, leads to the only conclusion that the same is not sufficient to constitute the commission of an offence punishable under Sections 279, 337 and 338 IPC. No doubt, it is established that besides simple, the complainant also received injuries, which are grievous in nature in the accident in question, however, since it is not established that the accused was driving the offending bus in a rash and negligent manner, no findings of conviction could have been recorded against him even for the commission of offence under Section 338 IPC. 19. The evidence as has come on record by way of the testimony of PW-2, Dr. Nidhi Aggarwal and PW-3, Dr. Hans Raj as well as MLC Ex.PW-3/A, could have been used as a link evidence had the prosecution been otherwise able to prove its case beyond all reasonable doubts. 20. 19. The evidence as has come on record by way of the testimony of PW-2, Dr. Nidhi Aggarwal and PW-3, Dr. Hans Raj as well as MLC Ex.PW-3/A, could have been used as a link evidence had the prosecution been otherwise able to prove its case beyond all reasonable doubts. 20. If coming to the evidence as has come on record by way of the testimony of lady Constable Belmu Devi PW-1, she has proved the rapat Rojnamcha Ex.PW-1/A. Shri Rajinder Singh PW-5, Manager, Himachal Highway, had witnessed the process of taking into possession the copy of driving licence of the accused, Ex.P-1, copy of RC Ex.P-2 and the extract of Log book Ex.P-3 vide seizure memo Ex.PW5/A. Shri Sanjeev Kumar, who is the Motor Mechanic working in the Police Department has proved the report Ex.PW-8/A, prepared by him after examining the offending bus mechanically and HHC Jeet Ram, PW-9, remained associated during the investigation of the case and witnessed the application Ex.PW-7/A submitted by PW-7, I.O. to Medical Officer IGMC Shimla for medical examination of the complainant and had taken the statement Ex.PW-7/B of the complainant to Police Station for registration of the case. The evidence as has come on record by way of their testimonies could have also been used as link evidence had the prosecution case against the accused been proved from the testimony of the victim and independent witnesses. 21. The Investigating Officer, PW-7 Rajinder Kumar is also formal in nature. Nothing can be inferred from his testimony that the cause of accident was rash and negligent driving on the part of the accused alone and none else. 22. The reappraisal of the evidence hereinabove and also the legal provisions as well as the law laid down by this Court leads to the only conclusion that no other and further view of the matter except the one taken by the Lower Appellate Court can be taken in this case. 23. The findings of acquittal recorded by the Lower appellate Court are based upon proper appreciation of the evidence available on record. T he same thus suffers with no illegality or infirmity. The judgment impugned in the present appeal whereby the accused has been acquitted of the charge does not warrant any interference by this Court nor any case to record the findings of conviction against the accused is made out. T he same thus suffers with no illegality or infirmity. The judgment impugned in the present appeal whereby the accused has been acquitted of the charge does not warrant any interference by this Court nor any case to record the findings of conviction against the accused is made out. I thus find no substance in the present appeal and the same deserves dismissal. 24. In view of the above, this appeal fails and the same is accordingly dismissed. Bail bonds furnished by the accused-respondent are hereby cancelled and the surety discharged.