Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1056 (HP)

State of H. P. v. Onkar Chand

2016-06-15

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 31.12.2007 by the learned Additional Sessions Judge, Una, District Una, H.P. in Criminal Appeal No. 7 of 2006, whereby it while reversing the findings of conviction recorded on 27.3.2006 by the learned Judicial Magistrate, 1st Class, Court No. 1, Amb in Case No. 106-1 of 2004 acquitted the respondent (for short ‘accused’) for the offences punishable under Sections 279 and 338 of the Indian Penal Code. 2. The brief facts of the case are that complainant while appearing before the police at PHC Amb disclosed that on 17.5.2003 she had come to her parental home at village Katohar Khurd alongwith other family members for participating in a condolence function of near relative. After attending condolence complainant and other family members were waiting for a bus at Pakka Proh. Husband of the complainant in order to take water attempted to go towards the other side of the road. In the meantime HRTC bus bearing registration No.HP- 18-3588 came from Una Side at a very high speed which hit the husband of the complainant. The accident took place at 1.15 Noon. The husband of the complainant on account of the accident fell on the road. He was taken to the hospital. On the basis of the statement of the complainant, FIR was registered. Site plan was also prepared. Injured was medically examined. He was found to have suffered simple as well as grievous injuries. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. Notice of accusation stood put to the accused by the learned trial Court for his committing offences punishable under Sections 279, 338 of the I.P.C and 181 of the M.V Act, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence. He did not choose to lead any evidence in defence. 5. 4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence. He did not choose to lead any evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused for offences punishable under Sections 279 and 338 of the Indian Penal Code. However, in an appeal preferred there from by the accused before the learned appellate Court, the latter Court while reversing the findings of conviction recorded by the learned trial Court acquitted the accused. 6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Appellate Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. The learned Counsel appearing for the respondent/accused has with considerable force and vigor contended qua the findings of acquittal recorded by the learned Appellate Court standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record. 9. The learned Appellate Court reversed the findings of conviction recorded against the accused by the learned trial Court on the score of the latter untenably imputing credence to Ex. PW-10/B. The reason which prevailed upon the learned first Appellate Court to disimpute credence to Ex.PW-10/B stood aroused on account of PW-11 the Investigating Officer omitting to communicate in his deposition the prime factum qua whose instance he prepared it. The apposite communication by the Investigating Officer qua the person at whose instance he prepared it was of utmost significance as PW-11 was not present at the site of incident at the time contemporaneous to its occurrence thereat. His absence at the site of accident at the time contemporaneous to its taking place thereat enjoined upon him to solicit the assistance of persons available thereat contemporaneous to its taking place. His absence at the site of accident at the time contemporaneous to its taking place thereat enjoined upon him to solicit the assistance of persons available thereat contemporaneous to its taking place. The solicitation of assistance if any by the Investigating Officer in the apposite investigations conducted by him of persons available at the site of occurrence warranted revelation of their names by him. The aforesaid communication would dispel an inference of the Investigating Officer arbitrarily preparing the site plan. Further more the non-revelation by the Investigating Officer of the names of the persons whose help he solicited in preparing the spot map would also have facilitated the defence to cross-examine the aforesaid persons. The camaflouraging of the names of the persons by the Investigating Officer at whose instance he prepared the relevant spot map fosters an inference of the site plan standing arbitrarily prepared by him also it foments a conclusion of its preparation being surmisal whereupon as tenably done by the learned Appellate Court no credence is imputable. 10. In addition, the non-revelation of the names of the persons at whose instance the Investigating Officer prepared the site plan has prejudiced the defence. In aftermath with credence being dis-imputable to Ex.PW-10/B, the main plank of the prosecution case squarely hinged upon besides it suffers a severe jolt. 11. Be that as it may the version qua the incident as embodied in the FIR suffers from a taint or blemish of untruthfulness arising from the factum of PW-5 Shamo Devi embellishing and improving while deposing in Court the factum as stands previously narrated by her qua the bus driven by the accused striking her husband while he was crossing the road as he intended to fetch water from other side of the road taint whereof stands constituted in her deposing in contradiction thereto of the bus driven by the accused striking her husband while he was taking water in front of the shop. 12. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned Appellate Court does not suffer from any perversity and absurdity nor it can be said that the learned Appellate Court in recording findings of acquittal has committed any legal misdemeanor, in as much, as, mis-appreciating the evidence on record or omitting to appreciate the relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned Appellate Court merit any interference. 13. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned Appellate Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.