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2017 DIGILAW 1208 (HP)

State of Himachal Pradesh v. Muni Lal

2017-10-31

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal has been preferred by the State-appellant (hereinafter referred to as ‘the appellant’) against the judgment, dated 20.08.2008, passed by the learned Sessions Judge, (Forest), Shimla, in Criminal Appeal No. 48-S/10 of 08/04, whereby the judgment of conviction, dated 24.07.2004, as passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Shimla, H.P., in Case No. 69/2 of 2004/02, against the respondent/accused (hereinafter referred to as ‘the accused’), was set aside. 2. In brief, the facts giving rise to the present appeal, as per the prosecution, are that on 08.05.2001, at about 11.30 a.m., complainant Smt. Shakuntla Goel, (hereinafter referred to as the ‘complainant’) was returning to her house along with her daughter Kumari Rohini Goel after visiting Kaliwari Temple via A.G. Chowk, Bawa Market, Shimla. At that time, the accused came driving his scooter, bearing registration No. HPS-4506, in a rash and negligent manner in the wrong side and was going towards Bawa Market. The scooter struck against the right leg of the complainant, as a result of which, she suffered injury. However, the accused fled away from the spot. Thereafter, the complainant was taken to hospital and the matter was reported to the police. After completing the investigation, the accused was challaned for the offences under Sections 279 and 337 of the Indian Penal Code (for short ‘the IPC’) and Section 187 of the Motor Vehicles Act (for short ‘the MV Act’). 3. The prosecution, in order to prove its case, examined as many as seven witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he denied the prosecution case and claimed innocence, however, he did not examine any defence witness. 4. The learned Trial Court, vide judgment dated 24.07.2004, convicted the accused for the offences punishable under Sections 279 and 337 of the IPC and Section 187 of the MV Act and sentenced him to pay fine of Rs. 1,000/- for the offence punishable under Sections 279/337 of the IPC and in default of payment of fine, to further undergo simple imprisonment for 15 days. The accused/convict was also sentenced to pay fine of Rs. 200/- for the offence punishable under Section 187 of the MV Act and in default of payment of fine, to further undergo simple imprisonment for 15 days. 5. The accused/convict was also sentenced to pay fine of Rs. 200/- for the offence punishable under Section 187 of the MV Act and in default of payment of fine, to further undergo simple imprisonment for 15 days. 5. The accused laid challenge to the judgment of conviction, passed by the learned Trial Court by maintaining an appeal in the learned First Appellate Court and the learned First Appellate Court, vide impugned judgment, dated 20.08.2008, set aside the judgment of the learned Trial Court and acquitted the accused, hence the present appeal. 6. Learned Additional Advocate General has argued that the learned First Appellate Court without appreciating the facts, which have come on record, and without appreciating that the prosecution has proved the guilt of the accused beyond the shadow of all reasonable doubts, just on the basis of surmises and after misreading the evidence, acquitted the accused. He prayed that after appreciating the evidence, the accused be convicted for the offences, he was charged with. On the other hand, learned vice Counsel appearing on behalf of the accused argued that the prosecution has miserably failed to prove the guilt of the accused beyond the shadow of all reasonable doubts and so, the judgment of the learned Lower Appellate Court needs no interference. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully and in detail. 8. From the perusal of the record, it is evident that FIR was recorded on the basis of the statement of the complainant, Ext. PW-1/A. According to Ext. PW.1/A, it appears that at the time of the accident, the complainant was going towards Cart Road via A.G. Chowk, through Bawa Market. While appearing in the witness box as PW.1, complainant-Smt. Shakuntala Goel, has not stated about the spot of the accident, but she has admitted that her statement, Ext.PW/1/A, was correctly recorded. In her examination-in-chief, she has simply stated that when she was going down through the A.G. Office, accused came driving his scooter from the Cart Road side. Thus, this Court finds that according to PW-1, Smt. Shakuntala Goel, FIR, Ext. PW-7/A, was registered on the basis of her statement, Ext. PW-1/A, and the accident can be said to have taken place in the Bawa Market. Thus, this Court finds that according to PW-1, Smt. Shakuntala Goel, FIR, Ext. PW-7/A, was registered on the basis of her statement, Ext. PW-1/A, and the accident can be said to have taken place in the Bawa Market. PW-4-Kumari Rohini Goel, has stated that the accused came driving his scooter from the side of railway station and struck it against her mother. PW-1, Smt. Shakuntala Geol, has admitted, in her cross-examination that at the spot of accident, she had gone a little down from the crossing. The site map also suggests that the spot of accident was at a considerable distance from the crossing. 9. Shri Chet Ram, in whose presence, the scooter was taken into possession, has not been examined by the prosecution. At the same point of time, PW-1 Smt. Shakuntala Goel, in her statement recorded by the police, has stated the place of accident as Bawa Market and PW-4, Kumari Rohini Goel, has given the spot of accident, different from Bawa Market. The road coming from the Railway Station is entirely different from the road coming from Bara Market, which is clear from the spot map. Thus, it can safely be held that with respect to the spot of accident, there are material discrepancies in the statements of PW-1 Smt. Shakuntala Goel and PW-4, Kumari Rohini Goel. PW- 6, Head Constable Jai Singh, has stated that from the spot of accident, constable on duty at A.G. Office Chowk, could not be seen. 10. 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/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 11. 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. 12. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: “42. 12. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 13. In view of the settled legal position, as aforesaid, and the material on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused and the findings of acquittal, as recorded by the learned First Appellate Court, needs no interference, as the same are the result of appreciating the evidence correctly and to its true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is accordingly dismissed. 14. Accordingly, the appeal, which sans merits, deserves dismissal and is accordingly dismissed. 14. In view of the above, the appeal, so also pending applications, if any, stands disposed of.