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2016 DIGILAW 1102 (HP)

State of H. P. v. Naresh Kumar

2016-06-20

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 30.3.2007 by the learned Additional Sessions Judge, Shimla, H.P., whereby it while reversing the findings of conviction recorded on 25.5.2005 by the learned Additional Chief Judicial Magistrate, Court No.1, Shimla in case No. 80/2 of 2004, acquitted the respondent (for short ‘accused’) for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. 2. The brief facts of the case are that on 28.1.2004 complainant Nishant Sharma and his cousin Shri Sanjiv Pandit were going to Public Service Commission, Nigam Vihar, Shimla in a vehicle bearing registration No. HP-02-0404. This car was being driven by Rajiv Pandit. At about 2.30 p.m., they were going uphill near Talland and were on their own side of the road suddenly a Mahindra Pickup bearing registration No. HP-07-5377 driven by the accused came to the wrong side of the road and struck against their vehicle. Due to the accident, the complainant and one Kashnmiri labourer sustained injuries on their person. FIR was registered. Spot map was prepared by the Investigating Officer. The Mechanical reports of the vehicles were obtained. 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, 337 and 338 of the I.P.C to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 12 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, 337 and 338 of the Indian Penal Code. However, in an appeal preferred by the accused herein before the learned appellate Court, the latter Court while reversing the findings of conviction recorded by the learned trial Court acquitted the accused. 6. However, in an appeal preferred by the accused herein 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 se-quelled 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 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. A collision occurred inter-se a Mahindra Pickup driver’s seat whereof stood manned by the accused and a Maruti Car whereon complainant alongwith his cousin were aboard. In sequel to the collision which occurred inter-se the vehicles aforesaid injuries stood entailed upon the Gulam Mohd. Deen and Rajiv Pandit, injuries whereof stand depicted in their MLCs comprised in Ex. PW-8/B and PW-8/D. The complainant stepped into the witness box as PW-1 for sustaining the charge against the accused. His testimony qua the occurrence as comprised in his examination-in-chief unravels of his therein making firm echoings of the accused while at the relevant time manning the driver’s seat of the aforesaid vehicle his taking to ply his vehicle to the inappropriate side of the road, hence the vehicle aforesaid striking against the vehicle driven by the victim. The gravity of the collision which occurred inter-se the vehicles aforesaid, led the vehicle occupied by the complainant to be pushed against the retaining wall existing on the side of the road. The gravity of the collision which occurred inter-se the vehicles aforesaid, led the vehicle occupied by the complainant to be pushed against the retaining wall existing on the side of the road. In his cross-examination no underscorings stand communicated by him of the accused while driving the vehicle aforesaid despite adhering to the standards of due care and caution rather the existence of frost if any on the road precluding him to successfully apply its brakes, failure of application of brakes though concerted by the accused naturally leading the vehicle to swerve to the inappropriate side of the road. The absence of aforesaid communications by PW-1 in his deposition comprised in his cross-examination stands se-quelled by the learned defence counsel thereat not putting any apposite suggestion to him qua the existence of frost at the site of occurrence, existence whereof purportedly preempted the accused to successfully apply the brakes of the vehicle for his hence obviating the road mishap rather hence his vehicle swerving to the inappropriate side of the road. The effect of the learned defence counsel thereat omitting to put apposite suggestions to PW-1 while holding him to cross-examination whereas they constituted the best defence of the accused, is of at the outset the defence not holding with formidability any espousal of the aforesaid defence being available with it for its standing concerted by it for exculpating the guilt of the accused. The further effect of the aforesaid omission impinges upon the subsequent pronouncements if any in the depositions of the prosecution witnesses, of frost at the relevant time existing at the site of occurrence, existence whereof purportedly preempted the accused to successfully apply for obviating the road mishap the brakes of the apposite vehicle, rather existence of frost thereon leading it to naturally swerve to the inappropriate side of the road being construable to be merely an afterthought defence for thereupon negating the incriminatory role of the accused. An afterthought endeavor is obviously an invented endeavor qua the aforesaid facet. An invented and afterthought endeavor qua the facet aforesaid for hence dis-imputing credence to the prosecution version cannot stand to be countenanced by this Court. 10. An afterthought endeavor is obviously an invented endeavor qua the aforesaid facet. An invented and afterthought endeavor qua the facet aforesaid for hence dis-imputing credence to the prosecution version cannot stand to be countenanced by this Court. 10. Be that as it may, PW-3 the occupant of the vehicle driven by the accused at the relevant time though resiled from his previous statement recorded in writing nonetheless on his standing declared hostile whereupon the learned APP proceeded to subject him to cross-examination he has therein voiced of the vehicle driven by the accused swerving to the inappropriate side of the road besides has also communicated therein of the accused fleeing from the site of occurrence. The aforesaid factum of the accused fleeing from the site of occurrence pronounces upon the conduct of the accused inconsistent with his innocence. Even though, he proceeded to depose of frost existing on the middle of the road, also he deposes of the accused despite applying the brakes of his vehicle, the said application of brakes by the accused proving abortive, on anvil whereof the learned counsel for the accused contends of the defence succeeding to prove the factum of the accused not abandoning adherence to the standards of due care and caution rather the existence of frost at the relevant time at the site of occurrence precluding him to successfully apply the brakes of the vehicle driven by him whereupon hence the apposite vehicle naturally swerved to the inappropriate side of the road whereat it struck the vehicle occupied by the victim/complainant, swerving whereof not constituting any element of negligence on the part of the accused while driving the apposite vehicle. However the aforesaid submission when also acquires succor from the testimony of PW-6, the learned counsel appearing for the accused makes a vehement submission before this Court qua the findings of acquittal recorded by the Appellate Court not warranting any interference. However the aforesaid submission when also acquires succor from the testimony of PW-6, the learned counsel appearing for the accused makes a vehement submission before this Court qua the findings of acquittal recorded by the Appellate Court not warranting any interference. However the aforesaid submission does not acquire any immense force primarily given this Court for the reasons alluded hereinabove dispelling the endeavor made by the learned defence counsel subsequent to his holding PW-1 to cross-examination whereat no communications in congruity thereof for want of apposite suggestions in consonance there with standing put to him by the learned defence counsel thereat of hence the aforesaid subsequent endeavor of the learned counsel for the accused standing infected with a vice of premeditation besides with PW-3 in his cross-examination admitting the preparation of site plan by the Investigating Officer which omits to embody therein the defence concerted to be espoused by the counsel for the accused renders the oral communications in contradiction thereto by either PW-3 or any other PWs examined subsequent thereto to suffer from a vice of accentuated impairment. Consequently, hence with creditworthiness standing imputed by PW-3 to site plan comprised in Ex. PW-11/B wherein there is no display of frost occurring at the relevant time, the creditworthiness of the depositions of the prosecution witnesses in contradiction thereto hold no efficacy, also hence any espousal made before this Court by the learned counsel for the accused qua the aforesaid facet of defence holding any formidability besides sinew cannot stand to be accepted by this Court. 11. 11. Even if PW-4 has in his cross-examination deposed of no skidding marks being available at the relevant time at the site of occurrence, yet the absence of skid marks at the relevant site of occurrence stands explicated by PW-6, of frost existing thereon precluding the existence of skid marks thereat, nonetheless the aforesaid explication purveyed by PW-6 the owner of the vehicle driven by the accused appears to be perse interested also its worth gets dispelled on the score of his being unavailable at the relevant site at the time contemporaneous to the occurrence rather his admittedly proceeding thereat after half an hour elapsing since its taking place hence when absence of existence of skid marks at the relevant site of occurrence stands solitarily voiced by him whereas it stands unvoiced by any other PWs nor the defence adducing any potent evidence comprised in a display by the expert who visited the site of occurrence to check the solidity of frost existing at the site of occurrence of given the solidity of the mass of frost thereat of hence its not bearing any impression of any skid marks, absence whereof thereon hence capacitating the espousal of the defence of their nonexistence thereat not negativing the inference of the accused not applying the brakes of the apposite vehicle for preempting the accident, hence his not deviating from adhering to the standards of due care and caution. The aforesaid expert evidence was not enjoined to be led by the prosecution rather was enjoined to be led by the defence especially when its concert to hence exculpate the accused stood rested thereupon, as a corollary its non-adduction by the defence constrains this Court to conclude of depictions in site plan admitted by PW-3 alone holding sway qua unavailability of frost at the site of occurrence nor hence its existence if any thereon precluding the successful application of brakes of the apposite vehicle by the accused for his hence obviating the road mishap. 12. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned Appellate Court suffers from a gross perversity and absurdity or it can be said that the learned Appellate Court in recording findings of acquittal has committed a legal misdemeanor, in as much, as, its mis-appreciating the evidence on record or its omitting to appreciate the relevant and admissible evidence. In aftermath this Court deems it fit and appropriate that the findings of acquittal recorded by the learned Appellate Court merit interference. 13. In view of the above discussion, I find merit in this appeal, which is accordingly allowed and the impugned judgment of acquittal recorded by the learned Appellate Court is set aside. In sequel the judgment of conviction and sentence recorded by the learned trial Court is maintained and affirmed. Records be sent back.