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2016 DIGILAW 1207 (HP)

State of Himachal Pradesh v. Tarun Chopra

2016-06-28

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the State of Himachal Pradesh against the judgment of acquittal dated 09.10.2006, passed by learned Chief Judicial Magistrate, Una, District Una, H.P. in case No.30-II-2002, under Sections 279, 337 and 338 of Indian Penal Code. 2. Briefly stating the facts giving rise to the present appeal are that on 22.10.2001 at about 9.00 AM, complainant, Rajesh Kumar, alongwith his sister, Monika was coming to Jhalera on his Scooter No.HP-20A-1905 from his house and when they reached near Raisari bridge, a Tata Sumo bearing registration No.DL-ICE 4867 came with high speed from Una side and after coming to the wrong side, struck against their Scooter causing injuries to Rajesh and Monika. The injured were brought to the hospital where Rajesh Kumar gave statement under Section 154 Cr.P.C. The police visited the spot, took in possession Tata Sumo and Scooter and got those vehicles mechanically examined, took photographs of the spot and, after completion of investigations, filed challan against the accused under Sections 279, 337 and 338 IPC. 3. I have heard learned Additional Advocate General for the State-appellant and Shri Chandranarayan Singh, learned counsel for the respondent. Learned Additional Advocate General has vehemently argued that the Court below has arrived at the findings on surmises and conjectures and without appreciating the evidence in its true perspective. 4. Shri Chandranarayan Singh, learned counsel for the accused, on the other hand has argued that the prosecution has miserably failed to establish the case against respondent and none of the witnesses could identify the accused and otherwise also, the prosecution story is full of doubts and appeal be dismissed. 5. To appreciate the arguments of learned Additional Advocate General and learned counsel for the respondent, I have gone through the record in detail. 6. PW1 Dr. S. Rana, examined Monika, daughter of Jagdish Ram, and found injuries on her person and she was referred for X-Ray and after X-Ray, fracture was found and injuries No.1 & 2 were found to be grievous as per MLC Ex.PW1/A. On the same day, she had also examined Rajesh Kumar and found injuries on his person and after receiving report from the C.M.C., Chandigarh, she found fracture and injury No.1 was found to be grievous and others were simple and she had issued MLC Ex.PW1/B, which is on record. 7. 7. PW2 Sanjeev Kumar, Radiographer conducted X-ray of Monika, which are Ex.P1 and Ex.P2 respectively and that of Rajesh Kumar is Ex.P3 and handed-over the same to the police. In the presence of PW6 Rajinder Kumar, the police took into possession Scooter and Tata Sumo alongwith documents on record vide memo Ex.PW6/A and Ex. PW6/B. It has further been alleged that in the presence of PW7 Bhupinder Singh, the accused had produced driving licence, which the police took into possession on 23.10.2001, which is Ex.PW7/A. PW8, HC Ved Parkash, registered FIR Ex.PW8/B, on the basis of statement of Rajesh Kumar Ex.PW8/A. 8. PW3, Rajesh Kumar, has stated that on 22.10.2001, he along with his sister were going on Scooter No.HP-20A-1905 towards Jhalera. He was driving the scooter. At about 9.00 AM, near Raisari Bridge, a Tata Sumo No.DL ICE-4867 came with very high speed and after coming to the wrong side, struck with his scooter. His sister fell down from the bridge. He also sustained grievous injuries on right leg. His sister also got fracture of her arm, hip and at that time Tata Sumo was being driven by the accused. His father Jagdish and one Rakesh Kumar were coming on Scooter behind them and took them to the hospital and his statement Ex.PW3/A was recorded by police the in the hospital. He was also referred for X- Ray. He produced his driving licence to the police, which was taken into possession by the police vide memo Ex.PW2/B. In cross-examination, he has stated that his father reached at the spot after 5-10 minutes of the accident. It has also been admitted that he had not mentioned name of the accused in his statement. It is also admitted that accused was not known to him prior to the accident. The driver of Tata Sumo ran away from the spot. It has also been admitted that after the occurrence of the accident, he saw the accused for the first time in the Court. 9. PW4 Monika, who was the pillion rider of the Scooter of Rajesh Kumar had fully supported statement of PW3 stating that the Scooter was stopped by her brother and Tata Sumo struck against that Scooter and they sustained grievous injuries. In cross-examination, she has stated that she can recognize the accused on seeing his face. However, no identification parade was carried-out by the police. In cross-examination, she has stated that she can recognize the accused on seeing his face. However, no identification parade was carried-out by the police. The accused ran away after the accident. She has also seen the accused for the first time in the Court after the accident. 10. PW5 Rakesh Kumar has admitted that they reached on the spot and brought the injured to the hospital, as the Scooter, which was being driven by Rajesh Kumar had been hit by Tata Sumo. The accused ran away from the spot. However, he admitted that the police had not recorded his statement. They reached on the spot after five minutes of the accident and when they reached the spot, the accident had taken place and nobody was present in the Tata Sumo. 11. PW10 Shakti Chand had mechanically examined the Scooter and Tata Sumo on 22.10.2001 and did not notice any defect,, as per the reports Ex.PW10/A and Ex.PW10/B on record. 12. PW11 Karnail Singh got the photographs of the spot clicked and positives of which are Ex.PW11/A to Ex.PW11/C and negative Ex.PW11/D to Ex.PW11/F. 13. PW12 HC Subhash Chand, had visited the spot and prepared the site map Ex.PW12/C, got clicked photographs of the spot clicked, took into possession the vehicles and got them mechanically examined. 14. From the entire prosecution evidence, it is quite clear that prosecution has, in fact, failed to establish the identity of the accused. It is also admitted by the complainant Rajesh that in his statement recorded under Section 154 Cr.P.C., he did not mention name of the driver of the Tata Sumo. It is also admitted by him and Monika, that after the accident, the accused ran away from the spot. The evidence discussed above is so shabby and vague because the identity of the accused could not be established as driver of Sumo at that time. The prosecution has, in fact, failed to prove identity of the accused by leading cogent and satisfactory evidence. Although the accused was not known to the complainant and the complainant was injured also, yet prosecution has not conducted identification parade for establishing identity of the accused. 15. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. 15. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. 16. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 17. So, when the identity of the accused is not established, the findings of the Court below cannot be said to be perverse and against the law, as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. 18. In these circumstances, I find that the trial Court had rightly dealt with the evidence and found the same to be not worthy of credence. Thus, I find no merit and substance to interfere with the well reasoned judgment, passed by learned Chief Judicial Magistrate, Una, and the appeal is accordingly dismissed.