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Himachal Pradesh High Court · body

2016 DIGILAW 632 (HP)

Thouthi Ram v. State of Himachal Pradesh

2016-05-02

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. The present criminal revision petition filed under Section 397 read with Section 401 of the Cr.PC is directed against the judgment dated 10.4.2015 passed by learned Additional Sessions Judge-III, Kangra at Dharamshala (Circuit Court at Palampur,) District Kangra (H.P.) in Criminal RBT Appeal No. 8-P/X/13/12 affirming the judgment of sentence/conviction awarded against the present petitioner-accused by learned Judicial Magistrate, Ist class Palampur, District Kangra vide judgment dated 29/30.8.2012 in Criminal Case No.160-II/2010. 2. In nutshell case set up by the prosecution is that on 22.6.2010, the complainant-Sudershna Devi PW-1 alongwith her son Anil Kumar PW-5 were coming to their house at Khatrehar Paprola in Car bearing No. HP-53-5068, after attending marriage. At the relevant time, PW-5 Anil Kumar was driving the car. As per story of the prosecution, at around 7:15 AM, when they reached near Punjab Kesari Office, Paror, a Tipper No. HP-37B-1775 being driven by the present petitioner-Thouthi Ram (hereinafter referred to as the accused) at a very high speed came from Palampur side and hit the aforementioned car on the wrong side of the road, as a result whereof PW-1 Sudershna Devi PW-1 as well as her son PW-5 Anil Kumar sustained minor injuries on their person. As per the narration given by the prosecution, the accident had taken place due to the rash and negligent driving of the accused. Further, after receiving a unanimous telephonic intimation of the accident at Police Station Bhawarna, District Kangra, rapat Ext. PW3/A was incorporated in the daily diary and H.C. Swaroop Chand PW- 3 alongwith HHG Ranbir Singh rushed to the spot where statement of PW-1 was recorded as Ext.PW1/A. Thereafter, H.C. Swaroop Chand PW-3 sent the statement Ext.PW1/A to the police station through HHG Ranbir Singh and FIR Ext.PW3/B was registered against the accused. At the instance of police, PW-1 injured Sudershna Devi was medically examined at SDH, Palampur and MLC Ex.PF was obtained. PW-3 H.C. Swaroop Chand prepared spot map Ext.PW3/D and took into possession car No. HP-53-5068 along with documents vide fard Ext.PA and simultaneously offending Tipper No. HP-37B-1775 was also taken into possession vide fard Ext.PB. Later on, both the above referred vehicles were got medically examined and mechanical reports Ext.PD and Ext.PE were also procured. After completion of investigation, challan against the accused was prepared and presented before the court. Later on, both the above referred vehicles were got medically examined and mechanical reports Ext.PD and Ext.PE were also procured. After completion of investigation, challan against the accused was prepared and presented before the court. The learned trial Court below after supplying the copy of the challan, as envisaged under law, supplied to the accused and issued notice of accusation under Section 279 and 337 of the IPC. Accused pleaded not guilty and claimed trial. 3. The learned trial Court, after perusing the evidence on record, convicted the accused for committing offence under Sections 279 and 337 IPC and sentenced him to undergo Simple Imprisonment for a period of three months and to pay fine of Rs. 500/-and in default to pay fine, to further undergo Simple Imprisonment for one month for his committing offence under Section 279 IPC. Accused was also sentenced to undergo Simple Imprisonment for a period of three months and to pay fine of Rs. 500/-and in default to pay fine, to further undergo Simple Imprisonment for one month for committing offence under Section 337 IPC. Though, sentence awarded hereinabove was ordered to be run concurrently. 4. Being aggrieved with the judgment dated 29/30.8.2012 passed by the learned trial Court below, present petitioner preferred an appeal under Section 374 Cr.PC before the learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P. However, court of learned Additional Sessions Judge-III dismissed the appeal and upheld the judgment passed by learned trial Court. 5. Hence, by way of present petition, petitioner has prayed for quashing and setting aside of judgments of the learned courts below. 6. Albeit. While exercising revisionary jurisdiction under Section 397 read with Section 401 Cr.PC, this Court has limited power to re-appreciate the evidence brought on record. However, with a view to reach just and fair conclusion to ascertain that orders/judgments passed by learned courts below are not illegal and perverse, an exercise is undertaken to critically examine evidence brought on record by the prosecution. 7. Shri Anuj Gupta, learned counsel representing the petitioner vehemently argued that judgments passed by the court below convicting the accused deserve to be quashed and set-aside being based on mere conjectures and surmises. He further contended that judgments under challenge are not sustainable either on fact or law. 7. Shri Anuj Gupta, learned counsel representing the petitioner vehemently argued that judgments passed by the court below convicting the accused deserve to be quashed and set-aside being based on mere conjectures and surmises. He further contended that judgments under challenge are not sustainable either on fact or law. He strenuously argued that learned trial Court as well as learned appellant Court while convicting the accused have not appreciated the evidence recorded in the case in its right perspective and has not taken note of the material inconsistencies, variations and contradictions in the statement of the complainant. He further pointed that material available on record nowhere suggests that prosecution has been able to prove its case beyond reasonable doubt. Rather, theory put forth by the prosecution is untrustworthy and could not be believed. 8. On the other hand, Shri Pankaj Negi, learned Deputy Advocate General, appearing on behalf of the respondent, supported the judgments passed by both the courts below and submitted that no interference of this Court is necessitated. Mr. Negi, further vehemently contended that perusal of the material adduced on record by the prosecution proves beyond reasonable doubt that present petitioner-accused had caused accident while driving rashly and negligently and as such, no lenient view can be taken. Mr. Negi Also submitted that this court may not re-appreciate the evidence already brought on record since both the courts below have already dealt with each and every prosecution witness for reaching a just and fair conclusion in the matter. 9. I have heard both the parties as well carefully gone through the record. In the present case, prosecution with a view to prove its case has examined as many as six witnesses. 10. Complainant-Sudershna Devi, appeared as PW- 1 and stated that on 22.6.2010, at around 7:15 AM, she along with her son after attending the marriage was coming back to her house in their vehicle. At that relevant time, her son PW-5 Anil Kumar was driving the vehicle. When they reached near Punjab Kesari Office, Paror, a Tipper came from Palampur side and hit their vehicle. She stated that accident took place due to negligence of the driver of the Tipper result whereof she sustained injuries. She in her statement also stated that she did not see the driver of the Tipper and she only came to know about the accused in the hospital. She stated that accident took place due to negligence of the driver of the Tipper result whereof she sustained injuries. She in her statement also stated that she did not see the driver of the Tipper and she only came to know about the accused in the hospital. Ext.PW1/A is the statement given by her to the police. In her cross-examination, she admitted that they had gone to attend the marriage in their relations and they enjoyed the whole night and started at 6:30AM in the morning. Though, she denied that they were tired and they had slept. But importantly, she said she does not know as to how the accident took place. As per her statement, her signatures on statement Ext.PW1/A, were obtained in the hospital. She did not disclose the number of vehicle and she did not know the name of the driver. She categorically stated in her examination-in-chief that she cannot recognize the driver as she had not seen him on that date. She also denied in her cross-examination that PW-5 her son, had fled from the spot because he had consumed the liquor and for this reason, his statement was not recorded on that day. She also denied that accident was caused due to rash and negligent driving of her son PW-5. She also denied that photographs Ext. PW4/A1 to A4 were not clicked in her presence but later on volunteered that photos were clicked by my son on mobile and were handed over to police. 11. Now, if we examine the statement of PW-1 in light of statement given by PW-3, PW-3 HC Swaroop Chand in his cross-examination stated that after getting information, he went to the spot and recorded the statement of PW-1 Sudershna Devi under Section 154 Cr.PC. Thereafter, he sent HHG Ranbir Kumar to police station for recording of FIR Ext.PW3/B. PW-3 in his cross-examination stated that when he reached at the spot, few people were present there and they were saying that PW-5 and PW-1 have not received any injury. He also admitted in his cross-examination that PW-5 Anil Kumar, who was driving the car, was not got medically examined as he had not received the injury. He also admitted in his cross-examination that PW-5 Anil Kumar, who was driving the car, was not got medically examined as he had not received the injury. If statements given by PW-1 and PW-3 are read in conjunction, certainly there are contradictions with regard to the preparation of Ext.PW1/A i.e. report under Section 154 Cr.PC because as per statement of PW-1, it was recorded and signed in the hospital whereas PW-3 has categorically stated that it was prepared and signed at the spot. The explanation of PW-1, in her statement to the effect that why the statement of PW-5 was not recorded on the spot on that day, is not convincing as she did not offer any explanation for the absence of PW-5 on that day. On the other hand, PW-3 in his statement stated that PW-5 was not got medically examined since he had not received any injury. Though in his statement, it has come that people were saying that PW-3 as well as PW-5 have not sustained any injury, meaning thereby, when PW-3 reached there, both complainant and PW1 and PW-3 were not present on the spot. Since it has come in the statement of PW-1 that accident took place when complainant as well as son were returning from marriage and it has also come that whole night they enjoyed, possibility of liquor having been consumed by Anil Kumar, could not be ruled out. Admittedly, PW-5 Anil Kumar, after accident fled away and his statement was not recorded by the police on that day and he was not got medically examined. Explanation rendered by PW-3 of not getting PW-5 medically examined since he had not received any injury, cannot be accepted in view of the fact that PW-5 was also driving the car which was involved in the accident. Was it not incumbent upon the police to get him medically examined to rule out whether he was intoxicated at that time or not? Even story put forth by prosecution with regard to clicking of photographs Ext.PW4/A1 to A4 is also shrouded with the suspicion solely for the reason that PW-1 in her statement has categorically stated that photos were clicked by her son PW-5 and were handed over to police. Even story put forth by prosecution with regard to clicking of photographs Ext.PW4/A1 to A4 is also shrouded with the suspicion solely for the reason that PW-1 in her statement has categorically stated that photos were clicked by her son PW-5 and were handed over to police. Now, if we advert to the testimony of Anil Kumar, PW-5 in cross-examination though denied that he had consumed liquor but he rendered no explanation as to why he fled away from the spot. He also admitted that he has instituted a case against the accused for compensation however, he feigned whether compensation, if any, has been received or not. 12. A careful perusal of the record made available to this Court indicates that no statement of PW-5 under Section 161 Cr.PC, who had allegedly suffered injury in the alleged accident, was recorded by the police at the first instance. It is not understood that if PW-5 Anil Kumar had not fled from the site of occurrence and he was available for recording of statement as well as getting medical examined then why his statement under Section 161 Cr.PC was not recorded on the date of accident. 13. Ext. PW3/F-statement under Section 161 Cr.PC admittedly was recorded on 23.7.2010 that too after about a month of the accident which portrays that purposely on 22.6.2010 statement of PW-5 was not recorded so that he may not be put to medical examination as to ascertain injuries on his person as well as to rule out of his being under the influence of the alcohol at that relevant time. 14. On the other hand PW-2 Rakesh Kumar who admittedly, as per his statement, is a relative of PW-1 as well as PW-5 stated that on 22.6.2010 at around 7:00 AM when he on his scooty was going to his house toward Palampur. When he reached near the bridge of Paror, he saw a tipper coming from Palampur side and hit a car. But it remains unexplained that how only he could be present on the site of occurrence. In his statement, he did not explain where he was coming from and whether he was also with the PW-1 and PW-6 in the marriage. Because of mere statement that when he reached near the bridge, he saw a tipper coming and hit a car, does not appear to be correct. In his statement, he did not explain where he was coming from and whether he was also with the PW-1 and PW-6 in the marriage. Because of mere statement that when he reached near the bridge, he saw a tipper coming and hit a car, does not appear to be correct. In his cross examination, he has admitted that car was owned by Om Parkash , R/o Paprola and one women and one boy namely Neelu was driving the car. He categorically stated that Om Parkash was his relative. However, he has failed to disclose these facts to the police since they were not enquired about the same. If I read the statement of PW-2 in light of his statement recorded under Section 161 Cr.PC, it can be safely inferred that actually he had not seen the accident but since as per his admission, he was relative of Om Parkash, he made the statement which does not inspire confidence and does not appear to be trustworthy in the totality of the facts and circumstances. On the other hand, accused in his statement under Section 313 Cr.PC has feigned ignorance about all the incriminatory circumstances cited against him in evidence by the prosecution but it remains fact that PW-1 who as per the story of prosecution was there at the time of the accident, could only identify or name the driver of the offending vehicle at the relevant time. She in her statement had categorically stated that she did not know the number of vehicle as well as name of the driver. There is no iota of evidence put forth by the prosecution suggesting that accused was the person who was driving the tipper and identified by PW-1, who besides sustaining injury was the eyewitness to the incident. I have no hesitation to point out that statement given by PW-5 does not deserve to be taken note at all in view of his conduct that he fled away from the site of the incident which clearly suggests that either accident occurred due to his negligence or just with a view to avoid medical examination, he fled away from the spot. It also remained unexplained that why police did not record his statement under Section 161 Cr.PC on the date of accident if he was present on the spot as has been stated by PW-1 in her statement why statement of PW-5 was recorded after one month, there is no explanation. It really creates doubt in my mind rather this fact compels me to have an opinion that statement of PW-5 was purposely not got recorded on that date to save him from medical examination knowing fully well that he had consumed the liquor in the marriage. Had police got him medically examined, all the suspicion of his having liquor would have been cleared but in the present facts and circumstances, adverse inference can easily be drawn that it was the negligence of PW-5 which caused the accident. As far as the alleged injury suffered by PW-1 is concerned, there appears to be contradiction also. She in her statement states that she suffered injury but PW-3 states that when he reached the spot of occurrence, people were there and saying that PWs No. 1 and 5 suffered no injury. Interestingly, doctor who had given MLC Ext.PF was not examined in the present case. Though, MLC has been proved on record by the counsel which shows that the simple injury was caused to PW-1. It also remains unexplained that why MLC Ext.PF was not got proved by the doctor who had actually issued it. It also raises suspicion with regard to the alleged incident. I had also occasion to peruse the photographs of the accident Ext.PW4/A2. Admittedly, first look of the same suggests that offending truck was on the wrong side and car in question was hit by the accused-petitioner but as stated above in the present case where PW-5 Anil Kumar, who was driving the car by fleeing from the spot has compelled this court to draw adverse inference that actually he was under influence of the liquor and since as per their statements had enjoyed the whole night in the marriage and caused accident due to his negligence. 15. 15. In totality of the circumstances, as emerging in the present case, it can also be inferred that PW-5 who had attended marriage night prior to the accident and enjoyed the whole night, had consumed liquor and was under the influence of same at the time of the accident which allegedly took place very next morning as has been pointed out earlier that PW-5 Anil Kumar merely by fleeing away from the spot on that day has forced this Court to reach at conclusion that there is a possibility that accident had actually occurred due to the negligence of the Anil Kumar- PW-5. Though, there are a number of discrepancies noticed by the court while perusing the entire evidence on record but it appears that evidence discussed herein above is sufficient to hold that in given facts and circumstances, two views are possible in the present case and as such present petitioner accused is entitled to the benefit of doubt. In the present case, prosecution story does not appear to be plausibly trustworthy and as such same cannot be relied upon. In this regard, I may refer the judgment passed by the Hon’ble Apex Court reported in State of UP versus Ghambhir Singh, AIR 2005 (92) SCC 2440, where Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:- “6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, he evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour o the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.” 16. The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:- “25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed. 27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature. 17. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature. 17. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, it has been held by the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another 1997 (4) SCC 241 that in case court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High court to prevent the abuse of process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal courts in its judicial process or illegality of sentence or order. 18. While applying the aforesaid principle as has been laid by the Hon’ble Apex Court in the aforesaid judgment, this High Court in Charan Singh versus State of Himachal Pradesh, latest HLJ 2013 (32) HP 133 has also reiterated the same view while relying on the aforesaid judgment. 19. Admittedly after perusal of the entire evidence, I have no hesitation to hold that both the courts below have misconstrued and misinterpreted the evidence while returning the finding that petitioner was negligent in causing the accident. Rather both the courts below have miserably failed to take note of the fact that PW-5 who actually drove the ill-fated car on the date had fled away from the spot and purposely evaded the medical examination perhaps with a view to avoid finding of his being intoxicated at that relevant time. Both the courts below have also failed to acknowledge the fact that his statement was not recorded under Section 161 Cr.PC on the given date and why the statement was recorded after one month. Even at this stage, if I again refer to the photographs Ext. Both the courts below have also failed to acknowledge the fact that his statement was not recorded under Section 161 Cr.PC on the given date and why the statement was recorded after one month. Even at this stage, if I again refer to the photographs Ext. PW4/A1 to A4, it is clear that car has been hit by the offending vehicle on driver side, meaning thereby, PW-5 who was driving the Car should have sustained injury on his person but in the present case as per medical evidence available on record as well as statements given by the prosecution witnesses, no injury was sustained by PW-5 and whereof PW-1 has been allegedly having suffered minor injuries which also has been not proved as doctor was not brought in the witness box. Consequently, in view of the aforesaid discussion, the judgment dated 10.4.2015 passed by learned Additional Sessions Judge-III, Kangra at Dharamshala (Circuit Court at Palampur,) District Kangra (H.P.) in Criminal RBT Appeal No. 8-P/X/13/12 affirming the judgment of sentence/conviction awarded against the present petitioneraccused by learned Judicial Magistrate, Ist class Palampur, District Kangra vide judgment dated 29/30.8.2012 in Criminal Case No.160-II/2010 are set-aside and quashed. The petitioner is acquitted of the accusation. His bail bonds are discharged. The fine amount, if any, deposited by the petitioner-accused be refunded to him. Present criminal revision petition stands disposed of, so also pending application(s), if any.