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2016 DIGILAW 1145 (HP)

State of H. P. v. Prem Raj

2016-06-23

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 20.3.2007, by the learned Judicial Magistrate, IInd Class, Court No.(VI), Shimla, H.P., in Criminal Case No. 61-2 of 06/2005, whereby the learned trial Court acquitted the respondent (for short ‘accused’) for the offences charged. 2. The brief facts of the case are that on 15.5.2005 at about 3.40 p.m. at main road near IGMC Shimla, accused was driving the bus bearing registration No. HP63-0310 in a rash and negligent manner and when complainant Geeta Devi was disembarking from the bus at the same time the driver suddenly started the bus as a result thereof complainant fell down on the road and sustained simple as well as grievous injuries on her person. The complainant lodged FIR qua the occurrence. The complainant was medically examined at IGMC, Shimla. Her MLC was procured. The police went to the spot and prepared the spot map. Statements of witnesses were recorded. Vehicle aforesaid was taken into possession vide separate seizure memo. 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 I.P.C, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. 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 acquittal in favour of the accused. 6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial 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. 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 Court below 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. In support of the prosecution case the prosecution examined nine witnesses. The injuries suffered by the victim/complainant were a sequel to hers falling on the road while she was in the process of disembarking from the front door of the bus driven by the accused at the relevant time. The prosecution attributes negligence to the accused comprised in the factum of his not ensuring the safe disembarking there from of PW-2 (Geeta Devi) rather his without ensuring of the victim safely egressing from the bus, his taking to drive it. The prime evidence qua the lack of adherence by the accused of the prime duty cast upon him to not ply the bus unless all the passengers aboard it safely egress there from stood comprised in the factum of the accused despite its conductor not blowing the whistle as a signal to him of all the passengers safely egressing from the bus, his yet proceeding to ply it. However except PW-2 who is the complainant none has deposed qua the aforesaid factum hence no other PWs secure corroboration to the said fact deposed by PW-2. However except PW-2 who is the complainant none has deposed qua the aforesaid factum hence no other PWs secure corroboration to the said fact deposed by PW-2. Even though the sole testimony of PW-2 qua the factum aforesaid may constitute clinching evidence against the accused, yet the communication aforesaid made by PW-2 in her deposition for its attaining immense probative succor, is to be also read in entwinement with the deposition of PW-3 (kalyan Singh) an eye witness to the occurrence who in his cross-examination held by the learned defence counsel has deposed of his disembarking from the bus prior to the victim/complainant disembarking there from yet his not making any echoings therein of the conductor of the bus not blowing his whistle and of the accused yet proceeding to ply the bus renders the effect if any of the deposition of PW-2 who has deposed of the accused despite not receiving a signal from the conductor to ply it, his yet proceeding to ply it even when the complainant/victim had not safely egressed there from to acquire no truth it being wholly invented besides surmisal. Since the victim/complainant in the FIR lodged by her qua the occurrence solitarily has made a communication therein of the accused being negligent in plying the bus without ensuring hers safely egressing there from comprised in his taking to ply it without his receiving a signal from the conductor, it was incumbent upon the Investigating Officer to from PW-3 besides from other co-passengers of the bus elicit apposite communications in their respective previous statements recorded in writing by him, of the accused in the manner aforesaid being negligent in driving the bus hence se-qeulling entailment of injuries on the person of the complainant/victim. The aforesaid omission on the part of the Investigating Officer constrains this Court to also conclude of the solitary deposition of PW-2 qua the aforesaid manner of negligence of the accused being a pure invention. 10. Be that as it may the conductor (PW-5) who was the prime prosecution witness for proving the manner of negligence ascribed by the prosecution to the accused yet in his deposition he has resiled from his previous statement recorded in writing wherein he articulates of the accused despite not receiving any signal from him, his yet proceeding to ply it even when the victim/complainant not safely egressing there from. With PW-5 the prime prosecution witness not lending support to the prosecution case rather in his cross- examination held by the learned APP on his standing declared hostile his denying the apposite suggestion put to him, of his blowing the whistle at the relevant time rather contrarily constrains this Court to conclude of his signaling the accused to proceed to ply his bus only on his ensuring of the complainant/victim safely egressing there from. The effect of the prime witness not supporting the prosecution case constrains this court to conclude of the injuries suffered by the complainant/victim being a sequel to hers accidentally falling on the road. 11. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal has committed any legal misdemeanor, in as much, as, its having mis-appreciated the evidence on record or its having omitted to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit any interference. 12. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.