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Himachal Pradesh High Court · body

2016 DIGILAW 1229 (HP)

State of H. P. v. Raj Kumar

2016-06-30

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed by the State of Himachal Pradesh against the impugned judgment rendered on 28.12.2007 by the learned Judicial Magistrate, 1st Class, Court No. VI, Shimla in Criminal Case No. 45-2 of 2007/06, 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 9.9.2006 at about 2.20 p.m. near Goyal Motors, Tara Devi, Shimla, accused Raj Kumar was driving a bus No. HP-63-1446 on public high way in a rash and negligent manner and collided his bus with Mahindra Pick Up No. HP-63-0569. In this regard complainant Ramesh Kumar made a complaint to the police under Section 154 Cr.P.C. Police went to the spot and prepared the spot map. Statements of witnesses under Section 161 Cr.P.C. were recorded and police taken into possession the aforesaid vehicles vide separate memos. The accused was arrested by the police and after that accused was released by the police on bail. 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 offence punishable under Section 279 IPC 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 and claimed false implication. He did not choose to lead any evidence in defence. 5. On an appraisal of 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 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. 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 has with considerable force and vigour 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. The complainant/informant Ramesh Kumar while at the relevant time at the site of occurrence driving Mahindra Pick Up No. HP-63-0569 it collided thereat with the vehicle driven by the accused. The learned trial Court in recording findings of acquittal had dispelled the creditworthiness of the testimonies of PW-1 and PW-3 both eye witnesses thereto rather had imputed credence to the testimony of PW-10, an occupant along with the accused/respondent in the offending vehicle. Hence it has to be gauged whether the aforesaid dispelling by the learned trial Court of the creditworthiness of the testimonies of PW-1 and PW-3 contrarily its imputing credence to the testimony of PW-10 does or does not suffer from any infirmity of its mis-appreciating or omitting to appreciate, their relevant impact upon the concert of the prosecution in proving the genesis of its case against the respondent/accused. Any dis-imputation by the learned trial Court qua the veracity of the testimonies of PW-1 and PW-3 would hold tenacity only in the event of each of them deposing a version contradictory to the one disclosed by them respectively in their previous statements recorded in writing besides when their occur manifest intra se contradictions in their respective depositions qua the occurrence. Both PW-1 and PW-3 in their respective depositions ascribed negligence to the respondent/accused in the latter’s driving the offending vehicle. Since on the relevant day a land slide had occurred at the site of occurrence hence its occurrence thereat restricted the free movement of the traffic thereat. Both PW-1 and PW-3 in their respective depositions ascribed negligence to the respondent/accused in the latter’s driving the offending vehicle. Since on the relevant day a land slide had occurred at the site of occurrence hence its occurrence thereat restricted the free movement of the traffic thereat. Uncontrovertedly, given the national highway at the relevant site of occurrence standing hence constricted in width whereupon the traffic thereat could ply only one way, as a corollary, when at the relevant site of occurrence for the reasons ascribed hereinafter there was no opportunity to either the vehicle driven by the complainant or to the vehicle driven by the accused/respondent to proceed ahead of the other unless one adhered to, for obviating the road mishap, the standards of due care and caution by applying the brakes of the relevant vehicle driven by him, hence it was incumbent upon the accused/respondent, given the admitted prime factum of his swerving his vehicle to the inappropriate side of the road thereupon his hence holding an onerous duty, to, given his sighting the vehicle driven by the complainant/victim which arrived thereat from the opposite direction for obviating its colliding with the vehicle driven by the victim/complainant, apply its brakes. Also since the vehicle driven by the victim complainant was occupying the appropriate side of the road yet the aforesaid factum alone did not given the factum of the accused respondent standing constrained to with a land slide occurring at the site of occurrence swerve it to the inappropriate side of the road, relieve him also of his duty to slow the pace of his vehicle for obviating its colliding with the vehicle driven by the respondent/accused. PW-1 has in his deposition comprised in his examination in chief deposed of his, at the relevant time on his sighting the vehicle driven by the accused respondent, vehicle whereof had swerved to the inappropriate side of the road, his applying the brakes of the vehicle driven by him. However, the aforesaid deposition is a pure embellishment or an improvement besides contradicts his previous recorded statement qua the occurrence wherein the factum aforesaid stands unenunciated by him. However, the aforesaid deposition is a pure embellishment or an improvement besides contradicts his previous recorded statement qua the occurrence wherein the factum aforesaid stands unenunciated by him. Even when hence the aforesaid factum singularly ingrains his deposition qua it with a vice of embellishment constraining hence this Court to conclude there from of the victim/informant also not adhering to the standards of due care and caution constituted in his applying the brakes of his vehicle on sighting the vehicle driven by the accused whereupon hence the road mishap would stand obviated, does not yet shake the edifice of the prosecution story in its entirety, as PW-3 another eye witness to the occurrence has echoed in his deposition comprised in his examination in chief of the victim/informant driving his vehicle at a slow pace at the relevant time. The aforesaid communication made by him in his examination in chief stands uncontradicted by his previous statement recorded in writing hence credence is imputable to it also when the factum aforesaid deposed by him in his examination in chief though stood concerted to be shred of its efficacy by the learned defence counsel by his putting an apposite suggestion to him yet with the apposite suggestion put to him by the learned defence counsel while holding him to cross-examination standing repulsed by him renders open a firm conclusion, of the victim on sighting the vehicle driven by the accused/respondent, his slowing the pace of the vehicle driven by him. Consequently, it has to be held of even when the accused given the constraint aforesaid besetting him, drove his vehicle on the inappropriate side of the road, of the victim/complainant too standing not yet relieved of his duty to apply the brakes of his vehicle or slow down its pace whereupon hence the collision interse the vehicle driven by the accused with the vehicle driven by the complainant would have not occurred, duty where of as displayed by the un-shattered testimony of PW-3 an eye witness to the occurrence stood performed by the victim comprised in his at the relevant time slowing the pace of the vehicle driven by him, hence his evidently conforming to his enjoined duty of his adhering to the standards of due care and caution. Consequently, the effect of contradictions if any in the deposition of PW-1 vis-a-vis his previous statement recorded in writing qua his on sighting the vehicle driven by the respondent his applying its brakes would not per se constrain any conclusion, of the accident which occurred at the relevant time standing sequelled by the victim/informant being rash and negligent in driving his vehicle, purported rashness whereof at his instance in driving his vehicle stands purportedly constituted in his purportedly not adhering to standards of due care and caution. 10. Hereat, it is imperative to allude to the bespeakings occurring in the testimony of PW-10, as stood, relied upon by the learned trial Court for recording findings. A thorough reading of his testimony discloses of his in his cross-examination conceding to the factum qua occurrence of land slide at the site of occurrence rendering hence only a part of the road being pliable. In his cross-examination when he further communicates of the victim while driving his vehicle not applying its brakes rather his striking the relevant stationary bus at the site of occurrence does prima facie give impetus to an inference of the entire edifice of the prosecution case collapsing. However, for the aforesaid inference being carried forward, it has to be read in coagulation with further communications occurring in his cross-examination qua the road at the relevant site holding a width sufficient for enabling even the vehicle driven by the respondent moving ahead without its colliding with the vehicle driven by the accused respondent. A reading, of the latter part of his deposition in his cross-examination occurring immediately subsequent to the part therein, wherein he ascribes negligence to the informant while driving his vehicle, in conjunction with the opening part of his cross-examination wherein he discloses qua the side of road which constitutes the inappropriate side of the road vis-a-vis. the vehicle driven by the respondent standing constricted in width hence de-facilitating the movement of each of the vehicles on both sides of the national highway, obviously, manifests his therein concocting the factum qua adequacy of space at the site of occurrence still existing for facilitating the complainant to shift his vehicle thereat predominantly when earlier thereto he bespeaks of the National Highway only holding the capacity qua singular or solitary movement of vehicles thereat. The effect of the aforesaid contradictions is of theirs concomitantly rendering also the factum deposed by him wherein he ascribes negligence to the informant in the latters driving his vehicle, to stand conjured or engineered by him rather also it appears of his deposition standing reared by his holding leanings towards the respondent also hence his interestedness in deposing in his favour given his admittedly holding employment under the respondent. In sequel the discarding of the testimony of PW-1 and PW-3 by the learned trial Court rather its imputing credence to the biased testimony of PW-10 appears to stand sequelled by its misappreciating their respective probative worth. Also the photographic evidence on record, value whereof stood scored off by the learned trial Court merely on a cursory suggestion standing put to him by the learned defence counsel thereat while holding him to cross-examination of theirs standing clicked even when the position of the vehicles stood disturbed, suggestion whereof did not evoke a response in the affirmative, was not sufficient to dispel the relevant display in the photographs, of the vehicle driven by the accused/respondent occupying the inappropriate side of road also the display occurring therein in contradiction to the deposition of PW-10 constituted in his cross-examination of space yet standing left thereat despite the vehicle driven by the respondent swerving to the inappropriate side of the road, for its standing occupied by the vehicle driven by the informant whereupon hence negligence stands ascribed by him to the informant while driving his vehicle also acquiring an accentuated taint of invention. 11. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court suffers from a gross perversity and absurdity hence it can be held of the learned trial Court in recording findings of acquittal its committing a legal misdemeanor, inasmuch as its mis-appreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court deems it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit interference. 12. In view of the above discussion, I find merit in this appeal, which is accordingly allowed and the judgment of acquittal rendered by the learned trial Court is quashed and set-aside. Accordingly, the accused is held guilty for his committing an offence punishable under Section 279 IPC. 12. In view of the above discussion, I find merit in this appeal, which is accordingly allowed and the judgment of acquittal rendered by the learned trial Court is quashed and set-aside. Accordingly, the accused is held guilty for his committing an offence punishable under Section 279 IPC. Taking into consideration the facts and circumstances of the case, he is sentenced to undergo simple imprisonment for a period of two months and also to pay a fine of Rs.1000/-. In default of payment of fine amount he shall further undergo simple imprisonment for a period of 15 days. The Registry is directed to take up follow up action forthwith.