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2016 DIGILAW 2135 (HP)

State of Himachal Pradesh v. Jai Chand

2016-10-03

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of the accused in a case under Section 279 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Court No.II, Una, District Una, H.P, dated 30.11.2006, in Criminal Case No.226-I of 1998. 2. Briefly stating facts giving rise to the present appeal are that statement under Section 154 Cr. P.C (Ex.PW3/A) of complainant (PW-3) was recorded by HC Harpal Singh that on 2.10.1998 at about 11:15 PM, complainant was going to Village Budhan in a Jeep bearing No. HP-20-6109, as a driver alongwith Joginder Kumar, Yashpal and Pinku and on reaching at place Suniarwah (Bangana curve), he noticed a bus bearing No.HP-37- 0445 of HRTC enroute Sundernagar to Beas being driven by the accused (hereinafter referred to as ‘the accused’) at a high speed and he abruptly stopped the Jeep being driven by him on unmetalled portion of the road, on his left side, but the accused while driving the aforesaid bus hit the jeep from the right front portion of the Jeep and crossed through in a process of dashing with the vehicle (jeep), as a result of which, front glass and side mirror of the Jeep were broken besides pressing of front driver side. However, no one sustained any injuries. The accident has taken place due to the rash and negligent driving of the accused. Statement of the complainant was recorded by the Investigating Officer and sent to Police Station, Bangana through Constable Beant Kumar No.32, on the basis of which FIR (Ex.PW9/B), was registered against the accused. During the course of investigation, site plan (Ex.PW10/A) was prepared. 3. The prosecution, in order to prove its case, examined as many as 10 witnesses. Statement of the accused was recorded under Section 313 Cr. P.C, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused. 4. Learned Deputy Advocate General appearing on behalf of the appellant has argued that the appeal is required to be allowed and the accused is liable to be convicted, as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. 5. No defence evidence was led by the accused. 4. Learned Deputy Advocate General appearing on behalf of the appellant has argued that the appeal is required to be allowed and the accused is liable to be convicted, as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. 5. On the other hand, learned counsel appearing on behalf of the accused has argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and so, the accused was rightly acquitted. 6. To appreciate the arguments of learned Deputy Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. PW-1, PW-2, and PW-6 are the occupants of the Jeep and PW-3 was driver of the Jeep. The owner of Jeep PW-4 Gian Chand. PW-5 is the witness to recovery of Route Permit, Registration Certificate as well as Duty Register. The Photographer who took the photographs has appeared as PW-7. PW-8 Mechanic, who examined both the vehicles involved in the accident. PW-10 is the Investigating Officer. PW-1 has admitted that the Jeep belongs to a friend of his father-in-law. This version has also been admitted by PW-2, when he has stated that the Jeep belonged to his neighbour and friend. The owner of the vehicle PW-4 has stated that the vehicle was being driven by PW-3 Mohan Lal. PW-6 has also stated that he was learning the driving on the Jeep. PW-1 has further stated that after the accident, there was a traffic jam, thereafter, Police reached after about 20 minutes, so many vehicles were stranded on either side. He has also stated that the Police got both the vehicles taken away from the spot and thereafter released the traffic. PW-2 has deposed that after the accident, when the Bus was stopped, its rear portion was parallel to the rear portion of the Jeep. However, the photographs Ex.PW7/A and Ex.PW7/B and the spot map did not depict such a situation. PW-3 has also stated that on seeing Bus coming from the opposite direction, he parked his Jeep on the left side, but the accused while driving the Bus, hit on right side of the Jeep and in a process of dashing the Jeep, he took the Bus ahead. PW-3 has also stated that on seeing Bus coming from the opposite direction, he parked his Jeep on the left side, but the accused while driving the Bus, hit on right side of the Jeep and in a process of dashing the Jeep, he took the Bus ahead. In his cross-examination, he has denied that after the accident there was a traffic jam on either sides. However, he has stated that the light vehicles were passing through, but not the heavy vehicles. He has also stated that the photographs were taken earlier. PW-6 has stated that the bus after causing the accident, stopped at a distance of about 7-8 feet ahead. PW-6 has admitted in his cross examination that the accidental vehicles were shifted from the spot and thereafter the traffic was got released. 8. From the perusal of photographs Ex.PW7/A & Ex.PW7/B, no skid mark of tyre of the Jeep are visible on the spot and similarly such skid marks are also not shown in the site plan Ex.PW10/A. As per the statement of the driver of the Jeep (PW-3) on seeing a speeding Bus coming from the wrong direction, he had parked his Jeep on left side, but the speeding bus hit the right side of the Jeep and crossed in that process. If the version of PW-3 and other witnesses are believed that the still Jeep was hit by the speeding bus, which was coming downwards then obviously, it could have dragged the Jeep to some an extent and there should have been the skidding marks on the road, but the photographs (Ex.PW7/A & Ex.PW7/B) did not depict such skid mark. 9. PW-1, PW-2 and PW-3 have stated that the Jeep in question, had taken a turn and thereafter the accident had taken place. However, in the site plan, the spot of occurrence is depicted exactly on the curve. There is also contradiction with regard to the time taken by the Police for reaching on the spot, because as per PW-1, it reached within 20 minutes, but PW-2 stated that it took one hour. PW-3 deposed that it reached within 15 to 20 minutes whereas, PW-10 deposed that the Police Party reached on the spot at about 12:45 PM. There is also contradiction with regard to the time taken by the Police for reaching on the spot, because as per PW-1, it reached within 20 minutes, but PW-2 stated that it took one hour. PW-3 deposed that it reached within 15 to 20 minutes whereas, PW-10 deposed that the Police Party reached on the spot at about 12:45 PM. PW-3 has also made certain improvements with regard to the availability of women passengers in the Jeep, whereas he has not stated so in his statement under Section 154 Cr. P.C. There is also contradiction in the statement of PW-3 and recovery memo Ex.PW3/B with regard to the spot of their recording because PW-3 has stated that his statement was recorded at the Police Station whereas, memo Ex.PW3/B was prepared on the spot, whereas as per PW-10, these documents were prepared on the spot and statement Ex.PW3/A was sent to the Police Station, for registration of the FIR. 10. From the above, it is clear that there are material contradictions in the prosecution story. The prosecution has failed to prove the guilt of the accused conclusively and beyond the shadow of reasonable doubt. 11. 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. 12. 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. 13. So, in my considered view the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court. 14. In view of the aforesaid decisions of the Hon’ble Supreme Court and discussion made above, I find no merit in this appeal and the same is accordingly dismissed. Record of the learned trial Court be sent back forthwith.