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2015 DIGILAW 1911 (HP)

STATE OF H. P. v. AMIR KHAN

2015-12-17

SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. 1. State has appealed against the judgment dated 26.8.2009, passed by the Judicial Magistrate 1st Class, Nadaun, District Hamirpur, Himachal Pradesh, in RBT Cr. Case No.6-II-2003/48-II-2003, titled as State of Himachal Pradesh v. Amir Khan, challenging the acquittal of respondent Amir Khan (hereinafter referred to as the accused). 2. In connection with FIR No.25/2003, dated 22.1.2003 (Ex.PW-9/A), registered at Police Station, Nadaun, District Hamirpur, Himachal Pradesh, accused was charged to face trial for having committed offences, punishable under the provisions of Sections 279, 304-A of the Indian Penal Code and Sections 181 & 187 of the Motor Vehicles Act. 3. In short, it is the case of prosecution that on 22.1.2003, accused was driving Bus No.HP-22-4582, in a rash and negligent manner. Resultantly, he lost control of the bus and hit Master Chirag Kashyap, resulting into his death. Investigation was conducted by HC Kuldeep Singh (PW-12), who presented the challan in the Court for trial. 4. In order to establish its case, prosecution examined as many as 12 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded innocence and false implication. 5. Appreciating the testimonies of the witnesses, trial Court acquitted the accused of the offences punishable under the provisions of Sections 279 & 304-A of the Indian Penal and Section 181 of the Motor Vehicles Act, but however convicted him for having committed offence punishable under the provisions of Section 187 of the Motor Vehicles Act. 6. I have heard Mr. R.S. Verma, learned Additional Advocate General, on behalf of the State; Mr. Ajay Sharma, Advocate, on behalf of the accused and also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. 7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 8. 7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 8. In Prandas v. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under: "(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section 417, Criminal Procedure Code in an appeal from an order of acquittal has been stated in Sheo Swarup v. Emperor, AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice." 9. Out of 12 witnesses, prosecution case rests upon the testimonies of Shri Kashmir Singh (PW-1), Shri Kaur Chand (PW-2), Shri Kali Dass (PW-3), Shri Pritam Chand (PW-4) and Shri Ramesh Chand (PW-5). 10. Shri Kashmir Singh, who is the complainant, has not supported the prosecution. Despite extensive cross-examination, nothing fruitful could be elicited from his testimony. 11. Shri Kaur Chand and Shri Kali Dass are close relatives of the deceased. No doubt, they have testified that on 22.1.2003, they witnessed the occurrence of the incident, but however, their testimony is rendered to be doubtful, in view of the uncontroverted deposition on the part of Shri Kashmir Singh, who states that these witnesses reached the spot much after the incident and was not the witnesses to the occurrence of the incident. 12. Be that as it may, it be only observed that there are material contradictions in the testimonies of even these witnesses. Whereas, according to Shri Kaur Chand, speed of the vehicle was 90 kms, but Shri Kali Dass states it to be 60-70 kms. Further, Shri Kali Dass admits that at the time of occurrence of the incident, he was inside the store house, which was at a distance of 50-60 feet away from the spot of the occurrence of the incident and he does not specifically state that from that place, he could see the road or the place of the occurrence of the incident. Further, initial version deposed by Shri Kaur Chand was something else. According to him, the Bus first hit a tractor and then the victim, which is not so stated in the Court. This only strengthens the version of Shri Kashmir Singh. Improvement and embellishment are material, for none has come forward to state as to whether there was contributory negligence on the part of the driver of the tractor or not. It is not the case of prosecution that the place where the occurrence took place there was a blind curve and as such the bus was not visible to any person crossing the road. It is not the case of prosecution that the place where the occurrence took place there was a blind curve and as such the bus was not visible to any person crossing the road. Contributory negligence on the part of the pedestrian/victim has also not been ruled out, more so in view of the fact that he was crossing the road, which is a National Highway. 13. It be only observed that independent witness Shri Pritam Chand and Shri Ramesh Chand have not supported the prosecution and despite extensive cross-examination nothing fruitful could be elicited from their testimonies. Both these witnesses admit that they had not seen the occurrence of the incident and came to know about the same only from the passers-by. Well, who are such persons, remains undisclosed by them. 14. The apex Court in Basappa v. State of Karnataka, (2014) 5 SCC 154 , has held as under:- "7. In the instant case, the main defence of the appellant before the trial court was that there was no evidence to hold that he was the driver of the tractor at the relevant time. According to the prosecution, there is no direct evidence. Even the injured witness PW- 5, who was driving the scooty, has not identified the driver. The High Court, on the only evidence that the appellant was scolded by people in the hospital, has come to the conclusion that the appellant was the driver of the tractor. There is no direct evidence with regard to the ingredients of Sections 279 and 304A IPC. The High Court, on re-appreciation of the evidence, has taken another view so as to convict the accused." 15. Also the apex Court in Kishan Chand and another v. The State of Haryana, (1970) 3 SCC 904 , has held as under:- "17. This court approved in Kurban Hussain Mohammedali Rangwala v. State of Maharastra, AIR 1965 SC 1616 , the following passage in Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret Section 304-A: "To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient; cause without the intervention of anothers negligence. It must be the cause causans; it is not enough that it may have been the cause sine qua non." 16. Thus, in the absence of any clear, cogent, convincing evidence, as testified in Court, there is serious doubt with regard to involvement of the accused in the crime, in the manner in which the prosecution wants the Court to believe. It cannot be said with certainty that the accused was driving the vehicle in a rash and negligent manner so as to endanger human life, as a result of which the accident took place, in which victim Master Chirag Kashyap died. 17. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties. 18. It be only observed that this Court has not examined the correctness of the findings qua the offence for which the accused stands convicted. 19. The accused has 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 v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. Appeal stands disposed of, so also pending application(s), if any.