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2013 DIGILAW 422 (HP)

STATE OF HIMACHAL PRADESH v. HARI SINGH

2013-05-14

SANJAY KAROL

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JUDGMENT SANJAY KAROL, J. 1. ASSAILING the judgment dated 18.7.2005, passed by the learned Additional Chief Judicial Magistrate, in Criminal Case No. 18-II/98, titled as State of H.P. vs. Hari Singh, whereby the respondent-accused has been acquitted, the State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. IT is the case of the prosecution that on 7.10.1998 at about 7.00 p.m. complainant Raj Kumar (PW-7) and Shamsher Singh (deceased) were working towards Chatroli to attend an electricity complaint. When they reached near the railway crossing, the accused who was driving the vehicle (Three wheeler) bearing registration No. HP-04-0370 came from behind and hit Shamsher Singh, as a result of which Shamsher Singh fell down on the road and sustained injuries on his head. The incident was witnessed by Raj Kumar. Immediately after the occurrence of incident, local people including Sudershan Mahajan appeared on the spot. Shamsher Singh was taken to the hospital, however, he was declared dead. Post mortem of the dead body was conducted by Dr Sanjay (PW-3) and report is Ex. PW-3/A. In the incident PW-7 Raj Kumar also sustained injuries and he was taken to the hospital where he was medically examined by Dr. Varinder (PW-2) who issued MLC (Ex. PW-2/A). Police registered FIR No. 254/98 (Ex. PW-6/A) dated 7.10.1998 under Sections 279, 337 and 304-A of I.P.C at Police Station, Nurpur. With the completion of investigation, challan was presented in the Court for trial. Notice of accusation was put to the accused for having committed offences punishable under Sections 279 and 304-A of the Indian Penal Code to which he did not plead guilty and claimed trial. 3. IN order to prove its case, in all, prosecution examined nine witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took up defence of innocence. 4. APPRECIATING the testimony of the witnesses and the material placed on record, learned trial Court acquitted the accused of the charged offences. Hence, the present appeal. The fact that Shamsher Singh expired stands proved by Dr. Sanjay (PW-3) and post mortem report is Ex. PW-3/A. 5. DR. Varinder Gupta (PW2) has deposed that no injuries were found on the body of Raj Kumar (PW-7). However, he has deposed that the patient was in a state of panic and was tense during medical examination. The fact that Shamsher Singh expired stands proved by Dr. Sanjay (PW-3) and post mortem report is Ex. PW-3/A. 5. DR. Varinder Gupta (PW2) has deposed that no injuries were found on the body of Raj Kumar (PW-7). However, he has deposed that the patient was in a state of panic and was tense during medical examination. 6. THE fact that vehicle was recovered by the police on the following day also stands established. The issue which needs to be examined is as to whether prosecution has been able to establish, beyond reasonable doubt, the guilt of the accused in relation to the offences in question and also as to whether at the time of occurrence of the offence it was the accused who was driving the vehicle, on a public highway, in a manner so rash/negligent which caused hurt to the complainant and caused death of Shamsher Singh. 7. SIGNIFICANTLY, in my considered view learned trial Court has correctly and completely appreciated the material so placed on record by the prosecution. The Court below rightly appreciated the fact that the sole independent witness, namely, Raj Kumar (PW-7) did not support the prosecution case at all. 8. IN the instant case, the identity of the accused itself is in doubt. Prosecution has not been able to establish that in fact at the time of accident it was the accused, who was driving the vehicle in question. Raj Kumar (PW-7), in his un-rebutted testimony has deposed that he had not seen the accused as the vehicle, hit them from behind, also at the place of occurrence of the incident there was no light. The incident took place in the late hours of night. The witness has further deposed that he fell unconscious and did not know what happened immediately after the incident. Admittedly, other alleged spot witnesses, namely, Rashpal and Sudershan Mahajan were not examined, for the reasons best known to prosecution. Also another witness namely Sh. Kashmir was given up by the prosecution. In the challan itself, it is stated that one "Fauji" was driving the vehicle at the time of occurrence of the incident. 9. SURJEET Singh (PW-1) has simply deposed that he had produced the vehicle along with the accused before the police, the following day i.e. 8.10.1998. Also another witness namely Sh. Kashmir was given up by the prosecution. In the challan itself, it is stated that one "Fauji" was driving the vehicle at the time of occurrence of the incident. 9. SURJEET Singh (PW-1) has simply deposed that he had produced the vehicle along with the accused before the police, the following day i.e. 8.10.1998. But he does not specifically state that it was the accused who was driving the vehicle at the time of occurrence of the incident. 10. HAVING perused the testimony of the prosecution witnesses on record it cannot be said that the prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. Hence, in my considered view no interference is warranted in the present case. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , it cannot be said that the Court below incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. As such, the present appeal is dismissed, so also the pending applications, if any. Bail bonds, if any, furnished by the accused are discharged.