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2013 DIGILAW 466 (HP)

Rakesh Kumar v. State of Himachal Pradesh

2013-05-27

Sanjay Karol

body2013
JUDGMENT Sanjay Karol, J. Assailing the judgment dated 28.4.2005, passed by learned Chief Judicial Magistrate, Shimla, H.P., in Criminal Case No.56/2 of 2004/2003, titled as State of H.P. versus Rakesh Kumar, as affirmed by the learned Sessions Judge, Shimla, vide judgment dated 18.7.2007, passed in Criminal Appeal No.14-S/10 of 2005, tilted as Rakesh Kumar versus State of Himachal Pradesh, petitioner has filed the present Revision Petition under the provisions of Sections 397/ 401 of the Code of Criminal Procedure, 1973. 2. The prosecution case is that on 23.12.2002 at about 2:40 p.m., accused was driving vehicle bearing No.HP-09-A0197 in a rash and negligent manner. When he reached near hotel Asia The Dawn, Shimla, he hit Dingu Ram, who was walking on the road with the vehicle. Dingu Ram sustained injuries. Instead of taking him to the hospital, accused fled away from the spot with the vehicle. Information of the incident was given to Police Station, West (Boileauganj). Police Barrier at Shoghi was informed that accused had fled away with the vehicle. The vehicle was intercepted by H.C. Rajinder Kumar (PW-1) and C. Govind Singh (PW-9) at Police Barrier, Shoghi. 3. In the meanwhile, H.C. Ravinder Kumar (PW-6) rushed to the spot of occurrence of the incident. There he recorded the statement of eye witness Shri Jagdish (PW-2) under the provisions of Section 154 of the Code of Criminal Procedure (Ex.PW6/A), which was sent to the Police Station, West Shimla through C. Ashok Kumar (not examined). F.I.R. No. 33/2002 dated 23.12.2002 (Ex.PW6/B) was registered. Since immediately after the accident, local residents had taken the injured to the hospital, H.C. Ravinder Kumar (PW-6) went there. Dr. Ravinder Mokta (PW-7) examined and opined that the patient had died. Medical report (Ex.PW7/A) was taken on record by the police. Postmortem of dead body was conducted by Dr. Piyush Kapila (PW-5) and postmortem report (Ex.PW5/A) taken on record by the police. The deceased had died as a result of ante mortem head injury. The vehicle intercepted at Shoghi Barrier was seized vide memo (Ex.PW1/A). With the completion of investigation, Challan was presented in the Court for trial. 4. Notice of accusation was put to the accused for having committed offences punishable under the provisions of Sections 279 and 304-A of the Indian Penal Code, 1860 and Section 184 of the Motor Vehicles Act, 1988, to which he pleaded not guilty and claimed trial. 5. With the completion of investigation, Challan was presented in the Court for trial. 4. Notice of accusation was put to the accused for having committed offences punishable under the provisions of Sections 279 and 304-A of the Indian Penal Code, 1860 and Section 184 of the Motor Vehicles Act, 1988, to which he pleaded not guilty and claimed trial. 5. In order to establish its case, beyond reasonable doubt, in all prosecution examined as many as nine witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up a defence of total denial and more specifically that he was not employed as a driver on the vehicle in question. 6. The Trial Court, based on the testimonies of the prosecution witnesses convicted the accused in relation to the charged offences. The accused was sentenced to undergo rigorous imprisonment for a period of one month and pay fine of Rs. 500/- in relation to offence punishable under Section 279 of the Indian Penal Code; undergo six months rigorous imprisonment and pay fine of Rs. 4,000/- in relation to offence punishable under Section 304-A of the Indian Penal Code and imposed fine of Rs. 500/- in relation to offence punishable under Section 187 of the Motor Vehicles Act, 1988. In default of payment of fine he was to undergo 7 days, 30 days and 7 days simple imprisonment. Sentences were to run concurrently. Rs. 5,000/, as compensation, was directed to be paid to the legal heirs of the deceased Dingu Ram on production of Legal Heir Certificate. 7. The lower Appellate Court, affirmed the findings of conviction as also sentence, hence, the present petition. 8. Having heard learned counsel for the parties and perused the record, I am of the considered view that the Courts below have committed grave illegality and irregularity while appreciating the testimonies of the prosecution witnesses as also material placed on record by the prosecution. Except for mere reproduction of the testimonies of the prosecution witnesses, there is no discussion or reasoning in the judgment rendered by the lower appellate Court. The Trial Court, in my considered view, got swayed with the fact that death had taken place and as such assumed that, it was in fact the accused who was driving the vehicle in question, at the relevant point in time, with which the accident occurred. The Trial Court, in my considered view, got swayed with the fact that death had taken place and as such assumed that, it was in fact the accused who was driving the vehicle in question, at the relevant point in time, with which the accident occurred. The judgments cannot be said to be a complete and proper appreciation of facts which has resulted into perversity and travesty of justice. 9. In Krishan & another Vs. Krishnaveni & another, 1997 (4) SCC 241 , the apex Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order. 10. No doubt, death has taken place in a road accident but then prosecution has to prove, beyond reasonable doubt, the fact that it was only as a result of rash and negligent act and conduct of the accused. 11. The fact that Shri Dingu Ram died stands established through the testimony of PW-7 and PW-5. 12. The fact that Dingu Ram died as a result of the accident which took place near hotel Asia The down is also not in dispute. H.C. Ravinder Kumar (PW-6), I.O., in no uncertain terms has deposed that when he reached the spot, he learnt that Dingu Ram had been hit with a vehicle. The fact that accused died as a result of the accident can not be disputed by the petitioner. In this regard, there is some evidence on record that the local residents had taken the injured to the hospital for treatment. 13. The question which needs to be considered is as to whether it was the accused who was driving the vehicle on a public highway, at the given time, in a rash and negligent manner, so as to endanger human life and public safety and a result of such overt acts of omission and commission, accused hit the deceased, injuring him, and thereafter fled by driving the vehicle away from the spot. 14. In this regard, my specific attention has been invited by Mr. 14. In this regard, my specific attention has been invited by Mr. R.S. Verma, learned Additional Advocate General to the testimonies of the prosecution witnesses H.C. Rajinder Singh (PW-1), Shri Jagdish (PW-2), C. Govind Singh (PW-9) and H.C. Ravinder Kumar (PW-6). 15. Significantly, in the instant case, sole eye witness Jagdish Chand (PW-2) has not supported the prosecution case at all. He was cross-examined by the Public Prosecutor and despite cross-examination nothing fruitful could come out in his testimony. In his un-rebutted testimony, in no uncertain terms he has deposed that he did not see the accused drive the vehicle at the time of occurrence of the accident. All that he states is that vehicle bearing “No.0197” had hit the deceased. Even if statement (Ex.PW6/A) is accepted to be gospel truth, even then all that he states is that he learnt that Rakesh Kumar was driving the vehicle at the relevant time. He does not give particulars of this Rakesh Kumar. Significantly this witness was not taken to the Shoghi Barrier to identify the accused. Also, before his examination in Court the accused was not got identified by him by the police. From where did he come to know about the name of the accused is not on record. 16. Now, prosecution has not associated any of the local residents who had taken the deceased to the hospital after occurrence of the accident. Why so? has not been explained. It is not the case of the prosecution that PW-2 is a local resident or had reason to be present at the spot. Also, police has not explained why PW-2 remained on the spot till the time they reached there. He should have gone to the hospital or had he witnessed the incident he should have given the information to the police on telephone or at least some other person. Spot map (Ex.PW6/C) shows that there are commercial establishments near the place of occurrence of the accident. 17. That apart, there is a major flaw and a missing gap, apart from contradiction in the prosecution story. 18. According to PW-1 and PW-9, they intercepted the vehicle driven by the accused at the Shoghi Barrier at 2:30 p.m. This was immediately after the accident. 17. That apart, there is a major flaw and a missing gap, apart from contradiction in the prosecution story. 18. According to PW-1 and PW-9, they intercepted the vehicle driven by the accused at the Shoghi Barrier at 2:30 p.m. This was immediately after the accident. Record reveals that statement of PW-2 (Ex.PW6/A) was recorded only at 3:10 p.m. Now if statement of PW-2 was recorded at 3:10 p.m. then how is it that the vehicle was intercepted at the Police Barrier, Shoghi at 2:30 p.m. 19. It has come on record in the testimony of PW-8 that he received information about the accident on telephone. Significantly, he does not disclose the person who gave such information. He also does not disclose the identity of the accused. He also does not disclose the number and type of the vehicle which was involved in the accident. He also does not state that it was the deceased who had sustained injuries in the accident or that accused was driving the vehicle. He simply states that upon receiving information about the accident he sent information to the Shoghi Barrier. Here police has not placed on record memo or Daily Diary entry recording the receipt of the information about the accident. No document is on record about passing the information to the Barrier at Shoghi. 20. This witness only states that he rushed to the spot where he recorded statement (Ex.PW6/A) of PW-2. He states that the same was sent through C. Ashok Kumar (not examined) to the Police Station where F.I.R. (Ex.PW6/B) was recorded. Now if F.I.R. was recorded at 3:30 p.m. then number of the F.I.R. on the seizure memo of vehicle (Ex.PW1/A) which was intercepted by PW-1 and PW-9 at 2:30 p.m. has not been explained. It is in the same handwriting, pen and written in the same flow of handwriting. PW-8 states that he went to Shoghi and seized the vehicle, but then he does not state that after registration, copy of the F.I.R. was sent to him. 21. Also, police in the instant case has not got conducted any Test Identification Parade. Why so? has not been explained. In the given facts it cannot be said that prosecution has been able to prove and establish the fact that it was the accused who was driving the vehicle at the given time and that accident occurred due to his negligence. Why so? has not been explained. In the given facts it cannot be said that prosecution has been able to prove and establish the fact that it was the accused who was driving the vehicle at the given time and that accident occurred due to his negligence. 22. Significantly, the owner of vehicle has not been examined in Court to establish whether accused was in possession of the vehicle at the relevant time. 23. There is no doubt that the vehicle bearing HP-09-A0197 was stopped at Police Barrier, Shoghi. It has come on record that Shoghi Police Barrier is on a National Highway which is always busy and many vehicles of the make and type of the vehicle in question ply there. It could be a case of mistaken identity. 24. PW-2, in his un-rebutted testimony has not even disclosed complete particulars of the number of the vehicle. He only states that he had seen vehicle bearing “No.0197” hit the deceased but then this number can be of any series, even if the type of the vehicle is same. 25. Prosecution has not been able to establish the missing link, in the chain of events, between the time of occurrence of the incident and recording of statement of PW-2, to establish the guilt of accused and the factum of his having driven the vehicle in question, at the relevant time in a rash and negligent manner. 26. As such, present revision petition is allowed and the judgments of conviction and sentence passed by the Courts below are set aside. Bail bonds furnished by the accused are discharged. The fine if deposited is ordered to be refunded. The records of the Courts below be sent back immediately.