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2017 DIGILAW 1300 (HP)

State Of Himachal Pradesh v. Khub Ram

2017-11-24

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J.( Oral) - By way of instant Criminal appeal filed under section 378 of the Code of Criminal Procedure, 1973 challenge has been laid to the impugned judgment of acquittal dated 29.05.2017, recorded by learned Judicial Magistrate 1st Class, Bilaspur, Distt. Bilaspur, Himachal Pradesh, in Case No.64/2 2006, whereby the respondent-accused (hereinafter referred to as the accused) has been acquitted of the charge framed under Sections 279 & 337 of IPC and Section 184 of the Motor Vehicles Act. 2. FIR No.262/2005 came to be registered at Police Station, Bilaspur, Distt. Bilaspur, Himachal Pradesh, on 10.12.2005 at the behest of Dharmender Pal Sharma, driver of HRTC bus bearing No.HP-19B-6025, who in his statement recorded under Section 154 Cr.P.C., 1973 alleged that on 09.12.2005 when he was driving the bus on the route, namely, Shimla to Palampur, Maruti Van bearing No.HP-03C-1142 being driven by the respondent-accused, namely, Khub Ram came from wrong side in high speed and struck against the bus, as a consequence of which, respondent-accused, who happened to be the driver of aforesaid Maruti Van as well as other passengers sustained injuries in the aforesaid accident. Bumper of the bus and head light of the bus have also got damaged. On the aforesaid statement having been made by the complainant, namely, Dharmender Pal Sharma, FIR as mentioned above came to be registered against the accused under Sections 279 & 337 of IPC and Section 184 of the Motor Vehicles Act. 3. After completion of the investigation, police presented the challan in the competent Court of law i.e. learned Judicial Magistrate, 1st Class, Bilaspur, Himachal Pradesh, who being satisfied that a prima facie case exists against the accused, put a notice of accusation to the accused for having committed offences punishable under Sections 279 & 337 of IPC and Section 184 of the Motor Vehicles Act, to which he pleaded not guilty and claimed trial. 4. Prosecution with a view to prove its case examined as many as 5 witnesses, whereas the respondent-accused in his statement recorded under Section 313 Cr.P.C,, 1973 denied the case of the prosecution in toto but fact remains that he did not lead any evidence in his defence. 5. 4. Prosecution with a view to prove its case examined as many as 5 witnesses, whereas the respondent-accused in his statement recorded under Section 313 Cr.P.C,, 1973 denied the case of the prosecution in toto but fact remains that he did not lead any evidence in his defence. 5. Learned Trial Court vide impugned judgment dated 29.05.2017, held that the respondent-accused is not guilty of having committed the offences punishable under Sections 279 & 337 of IPC and Section 184 of IPC and accordingly, acquitted him. 6. In view of the aforesaid background, the State has approached this Court by way of instant appeal, seeking therein conviction of the respondent-accused after setting aside the judgment of acquittal recorded by the Court below. 7. I have heard learned counsel for the parties and gone through the record of the case. 8. This Court, after having carefully perused the evidence adduced on record by the prosecution vis-a-vis the impugned judgment of acquittal recorded by the Court below, sees no force in the averments of learned Additional Advocate General that the learned Court below, while acquitting the respondent-accused, has misread and misinterpreted the evidence available on record, which was otherwise sufficient to prove the guilt, if any, of the respondent-accused. Since this Court had an occasion to peruse the entire evidence during proceedings of the case, it has no hesitation to conclude that the prosecution has not been able to prove beyond reasonable doubt that the accident occurred due to rash and negligent driving by the respondent-accused and, as such, this Court sees no illegality and infirmity in the impugned judgment of acquittal recorded by the learned Court below, which otherwise appears to be based upon proper appreciation of evidence adduced on record. 9. Interestingly, in the instant case, the prosecution, for the reasons best known to it, had not chosen to examine the complainant, namely, Dharmender Pal Sharma, who in his statement recorded under Section 154 Cr.P.C., 1973 alleged that the Maruti Van being driven by the respondent-accused struck against the bus, which was enroute from Shimla to Palampur. 9. Interestingly, in the instant case, the prosecution, for the reasons best known to it, had not chosen to examine the complainant, namely, Dharmender Pal Sharma, who in his statement recorded under Section 154 Cr.P.C., 1973 alleged that the Maruti Van being driven by the respondent-accused struck against the bus, which was enroute from Shimla to Palampur. Similarly, this Court finds that the prosecution with a view to prove the injuries caused in the accident, if any, to the respondent-accused and other occupants of the vehicles placed on record MLCs, but interestingly those were not proved in accordance with law, as none of Medical Officer, who examined them came to be cited as prosecution witness. 10. Apart from above, this Court sees no specific evidence, if any, led on record by the prosecution suggestive of the fact that at that relevant time Maruti Van was being driven in rash and negligent manner by the respondent-accused and, as such, this Court sees considerable force in the averments of learned counsel for the respondent-accused that merely on the statement of PW-3 that Maruti Van was being driven rashly and negligently, the respondent-accused could not be held guilty under Section 279 IPC. Otherwise also, it has been repeatedly held by the Hon''ble Apex Court as well as this Court that the speed is not the sole criteria to determine the rash and negligent driving on the part of the driver, rather it is incumbent upon the prosecution to prove rash and negligent driving, if any, on the part of the driver by leading cogent and convincing evidence to the effect that the Maruti Van was being driven rashly and negligently, so as to endanger human life and safety of the persons traveling/walking on the road. 11. Reliance is placed upon the judgment passed by the Co-ordinate Bench of this Court in case State of H.P and Ors. vs. Paramjit Singh, latest HLJ 2012(HP) 297 to substantiate that speed is not the sole criteria to prove the rash and negligent driving. The relevant para Nos.14 and 15 of the judgment is reproduced as under:- "14. It is a settled law that the speed is not a criterion to prove the rash or negligent act of driving. The prosecution, as already stated above is obliged to prove the necessary ingredients of the offence by direct or circumstantial evidence. The relevant para Nos.14 and 15 of the judgment is reproduced as under:- "14. It is a settled law that the speed is not a criterion to prove the rash or negligent act of driving. The prosecution, as already stated above is obliged to prove the necessary ingredients of the offence by direct or circumstantial evidence. To fasten the criminal liability for the offences charged, there should be consistent, convincing and reliable evidence. Even in the exceptional cases, where the rule of res ipsa laquitar applies, it cannot be taken for guaranteed that the driver of the vehicle involved in the accident is guilty of offence. In the same situation, there could be civil liability as well, in addition to the criminal liability, but so far as the criminal liability, it has to be proved beyond reasonable doubt and civil liability can be proved by preponderance of probabilities. 15. On the strength of the aforesaid evidence, it is very difficult to conclude that the accused was driving the vehicle rashly or negligently, more specifically when it has also come in the evidence that the deceased came in contact with the offending vehicle while crossing the road. Therefore, in my considered opinion, the offences punishable under Sections 279 and 304-A of the Indian Penal Code against the accused are not made out." 12. Reliance is also placed on judgment rendered by the Hon''ble Apex Court in Braham Dass vs. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:- "6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused-appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a public way. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved." 13. The Hon''ble Apex Court in case titled "State of Karnataka vs. Satish," 1998 (8) SCC 493 , has also observed as under:- "1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed." 14. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur. 15. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon''ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon''ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In a nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Most importantly, Hon''ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In a nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon''ble Apex Court in C. Magesh and others vs. State of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been held as under:- "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh vs. State of U.P. (2008)16 SCC 686 : 2008(11) SCR 286 has held:-( SCC p.704, para 14). "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;...the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses. 16. Sole spot witness examined by the prosecution PW- 3 Saju Ram, who happened to be the conductor of the bus involved in the accident, nowhere proved the case of the prosecution because in his statement he has stated that accident took place due to rash and negligent driving on the part of the driver of Maruti Van, but in cross-examination, he has categorically admitted that accident took place at 12.30 A.M. and there was blind curve on the spot of occurrence and at the relevant time, respondent-accused was ascending the road. Interestingly, there is no mention, if any, of the speed of the Maruti Van being driven by the accused, in the statement of this witness. Rather, in his crossexamination, he has categorically admitted that Van driver was ascending the road and at that relevant time, he was alighting the passengers from the bus, meaning thereby that the bus was in stationary position at that relevant time, whereas the case of the prosecution is otherwise. 17. Consequently, in view of the detailed discussions made hereinabove as well as the law laid down by the Hon''ble Supreme Court, this Court sees no reason to interfere with the impugned judgment passed by the learned trial Court, which otherwise appears to be based upon the correct appreciation of the evidence adduced on record and as such, present appeal is dismissed being devoid of any merit.