Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 37 (HP)

Sunil Kumar v. State of H. P.

2014-01-06

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, Judge(Oral) Assailing the judgment dated 23.11.2011/ 30.11.2011, passed by learned Judicial Magistrate 1st Class, Court No.1, Una, District Una, Himachal Pradesh, in Criminal Case No.2-II-06/64-1-06, titled as State versus Sunil Kumar, as affirmed by the learned Additional Sessions Judge, Una, Himachal Pradesh, vide judgment dated 10.4.2013, passed in Criminal Appeal No.20-X/2011, titled as Sunil Kumar versus State of Himachal Pradesh, accused-petitioner Sunil Kumar has filed the present Revision Petition under the provisions of Section 397/401 of the Code of Criminal Procedure, 1973. 2. According to the prosecution, accused Sunil Kumar was driving vehicle (Qualis) No.CH-03-9010, in a rash and negligent manner, which was the cause of the accident, in which Anup Kumar (PW-3) was hurt. Matter was reported to the police. FIR No.28/06, dated 19.3.2006, under the provisions of Sections 279, 337, 338, 201 of the Indian Penal Code, was registered at Police Station, Una. Injured was administered medical treatment. One leg had to be amputated. With the completion of investigation, challan was presented in the Court for trial. 3. Notice of accusation was put to the accused for having committed offences punishable under the provisions of Sections 279, 337 and 338 of the Indian Penal Code. Accused pleaded not guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as twelve witnesses. Statement of accused under the provisions of Section 313 of the Code of Criminal Procedure, 1973 was also recorded, in which he pleaded false implication. No evidence was led in defence. 5. After trial, accused stands convicted and sentenced by the trial Court to undergo simple imprisonment for one month each and pay fine of Rs.500/- each, in relation to offences punishable under the provisions of Sections 279, 337 and 338 of the Indian Penal Code. The lower Appellate Court affirmed the judgment of conviction and sentence passed by the trial Court. 6. Heard learned counsel for the parties and perused the record. 7. The fact that accident took place is not in dispute. The fact that Anup Kumar was injured is also not in dispute. It has come on record that one of his legs had to be amputated. 8. Crucial question, which arises for consideration in the present petition, is as to whether prosecution has been able to prove and establish the identity of driver, who caused the accident, beyond reasonable doubt. The fact that Anup Kumar was injured is also not in dispute. It has come on record that one of his legs had to be amputated. 8. Crucial question, which arises for consideration in the present petition, is as to whether prosecution has been able to prove and establish the identity of driver, who caused the accident, beyond reasonable doubt. In this regard, relevant prosecution witnesses are Ashok Kumar (PW-1), Kanwar Bahadur (PW-2), Anup Kumar (Pw-3) and Ashok Kumar (PW-5). It is the accused or someone else who was driving the vehicle at the time of accident. 9. Anup Kumar(PW-3), at the time of occurrence of the accident, was a minor. In Court, he resiled from his statement recorded under the provisions of Section 161 of the Code of Criminal Procedure. But crucially, he does not state that it was the accused who was on the wheels at the time of occurrence of accident. Spot witness Ashok Kumar (PW-5) has turned hostile. He was cross-examined and despite extensive cross-examination nothing fruitful could be elicited from his testimony. His unrebutted testimony is there to the effect that he reached the spot only after the accident. Kanwar Bahadur (PW-2), who is the complainant and father of the injured, undisputedly reached the spot much after the occurrence of accident. He was called by PW-5. Ashok Kumar (PW-1) categorically states that he could not see the driver of the vehicle with which Anup Kumar was hit. Then how could it be said with certainty that it was the accused who was driving the vehicle at the time of accident. In this backdrop, the question of alleged rash and negligent act and conduct of the accused, having become irrelevant, is left open. 10. Thus, it cannot be said that the findings returned by the Courts below are based on correct and complete appreciation of evidence and other material placed on record by the prosecution. Conviction of the accused has only resulted into miscarriage of justice and as such the present Revision Petition needs to be allowed. Ordered accordingly. Judgment of conviction and sentence passed by the trial Court, as affirmed by the lower appellate Court, is set aside and the accused is acquitted. Fine amount, if deposited, be refunded to him. Personal and surety bonds furnished by the accused stand discharged. Revision petition stands disposed of, so also the pending application, if any.