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2017 DIGILAW 1398 (HP)

State Of H. P. v. Jagdish @ Jagan Nath

2017-12-15

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J.( Oral) - Being aggrieved and dissatisfied with the judgment of acquittal, dated 9.6.2017, recorded by the Judicial Magistrate, 1st Class, Bilaspur, H.P., in case No. 149/2 of 2005, whereby, respondent-accused, came to be acquitted of the charge framed against him under Section 279, 337 & 338 of IPC and Section 184 & 185 of Motor Vehicles Act, has approached this Court by way of instant proceedings filed under section 378 of Cr.P.C., 1973 praying therein to convict respondent-accused after setting aside the judgment of acquittal recorded by the learned court below. 2. Facts as emerged from the record, are that the FIR Ext. PW-5/B, dated 8.12.2016, came to be recorded, on the basis of the statement of PW-1, Satish Kumar, i.e. complainant, recorded under Section 154 Cr.P.C., 1973 wherein, he alleged that on 6.1.2005, he after finished his work, parked his vehicle bearing No. HP-34-0637 near the Pipal tree at place called Harnora. He alleged that at that time, two persons were also accompanied with him and at about 1.30 P.M., tractor bearing No. HP-69-0117, being driven by the respondent-accused in rash and negligent manner, came in high speed and struck against his car, as a consequence of which, his car as well as tractor, fell 8 to 10 feet below the road. Complainant, further alleged that in the aforesaid incident, he as well as other occupants of the vehicle namely Jagdish and Jang Bahadur, sustained injuries. In his statement recorded under Section 154 Cr.P.C, 1973 he further disclosed that he came to know that name of driver of the tractor as Jagdish Kumar and incident took place due to rash and negligent driving on his part. After completion of investigation, police presented the challan in the competent court of law, who being satisfied that prima facie case exist against the respondent-accused, put notice of accusation to him, for commission of offence punishable under Sections 279, 337 & 338 of IPC and Sections 184 and 185 of the Motor Vehicles Act, to which he pleaded not guilty and claims trial. Subsequently, learned trial court, vide judgment dated 9.6.2017, acquitted the respondent-accused of the charge framed against him. In the aforesaid background, appellant-State, has approached this Court by way of instant proceedings, seeking therein his conviction after setting aside the judgment of acquittal, recorded by the learned court below. 3. Mr. Subsequently, learned trial court, vide judgment dated 9.6.2017, acquitted the respondent-accused of the charge framed against him. In the aforesaid background, appellant-State, has approached this Court by way of instant proceedings, seeking therein his conviction after setting aside the judgment of acquittal, recorded by the learned court below. 3. Mr. P.M. Negi, learned Additional Advocate General, while referring to the impugned judgment of acquittal, recorded by the learned court below, vehemently argued that learned court below while acquitting the respondent-accused, had not appreciated the evidence in its right perspective, as a consequence of which, erroneous findings have come on record. To substantiate its aforesaid arguments, Mr. Negi, made this court to travel through the evidence led on record by the prosecution to suggest that there is complete misleading, misinterpretation and misappreciation of evidence by the learned court below. While referring to the report submitted by the FSL qua the blood and urine sample of accused, Mr. Negi, contended that it has specifically come in the report that at the time of accident, respondent-accused, was held influence of liquor and as such, there was no occasion for learned court below to acquit him. 4. Mr. Desh Raj, learned vice counsel, representing the respondent, while refuting the aforesaid contentions having been made by the learned Additional Advocate General, strenuously argued that there is no illegality and infirmity in the impugned judgment of acquittal, passed by the learned court below, rather, same is based upon the correct appreciation of evidence and as such, there is no scope of inference of this Court. While inviting attention of this Court to the statements made by the material prosecution witnesses, Mr. Desh Raj, learned counsel, contended that all the material prosecution witnesses turned hostile and none of the witness including the complainant, supported the case of the prosecution and as such, present appeal deserves to be dismissed. 5. I have heard the learned counsel for the parties and gone through the record. 6. During the proceedings of the case, this Court had an occasion to peruse the material available on record, especially, evidence led on record by the prosecution, perusal whereof, nowhere, persuade this Court to agree with the contentions of Mr. P.M. Negi, learned Additional Advocate General, that learned court below, misled, mis-appreciated and misconstrued the evidence adduced on record by the prosecution. P.M. Negi, learned Additional Advocate General, that learned court below, misled, mis-appreciated and misconstrued the evidence adduced on record by the prosecution. Rather, this court after gone through the evidence, has no hesitation to conclude that prosecution was not able to prove beyond reasonable doubt that on 6.1.2005, tractor bearing No. HP-690117, was being driven rashly and negligently by the respondent-accused, as a consequence of which, complainant and other occupants of the vehicle, suffered injuries. All the material prosecution witnesses complainant and other occupants PW-2 Ramesh Kumar and PW-3 Bhagwan Dass, turned hostile and nowhere supported the case of the prosecution. PW-1 Satish Kumar, felt ignorance before the court with regard to name of the driver of the tractor and as such, he was declared hostile but even if, crossexamination conducted by the learned APP, nowhere suggests that prosecution was able to extract something contrary of what he stated in examination-in-chief. In his crossexamination by defence, PW-1, complainant categorically admitted that he came to know the name of the accused, as police had disclosed him. Apart from above, he further deposed before the court below that all three were sitting in the car and they had not seen tractor. Most importantly, it has come in the cross-examination of this witness that he cannot say, whether tractor was being driven rashly and negligently by the accused or not. He further admitted in cross-examination that police took his signatures on black paper. He was unable to identify the accused present in the court. 7. Similarly, PW-2 Ramesh Kumar and PW-3 Bhagwan Dass, nowhere, supported the case of the prosecution and they were turned hostile. PW-2, Ramesh Kumr, in his crossexamination, stated that he has no knowledge qua the fact that on which date, alleged accident took place and who was driving the tractor. He also stated that he does not know that tractor skidded on the road. PW-3, Bhagwan Dass, specifically denied in his cross-examination that he had given any statement to the police as was shown to him by the learned APP. Save and except, PW-1, PW-2, PW-3 and other witnesses are formal in nature and their depositions/statements may not be very relevant to ascertain the guilt, if any, of the respondent-accused and as such, same are not considered at this stage, by this Court. 8. Save and except, PW-1, PW-2, PW-3 and other witnesses are formal in nature and their depositions/statements may not be very relevant to ascertain the guilt, if any, of the respondent-accused and as such, same are not considered at this stage, by this Court. 8. True it is, that prosecution with a view to prove injuries sustained on the person of complainant and other occupants, placed on record MLC Ext. PW-7/A, but that may not be sufficient to prove the guilt of respondent accused especially, when prosecution was not able to connect respondent-accused with the alleged accident. Moreover, PW-7 Dr. R.K. Gautam, in his cross-examination, has admitted the suggestion put to him that injuries mentioned in the MLC, can be caused by fall on hard surface. Leaving everything aside, this Court sees no evidence on record suggestive of the fact that vehicle in question was being driven rashly and negligently. It has been repeatedly held by the Hon''ble Apex Court as well as this Court that speed may not be sole criteria to ascertain rashness and negligence, if any, on the part of driver, rather prosecution is under obligation to lead cogent and convincing evidence, on record suggestive of the fact that vehicle was being driven rashly and negligently, which in the instant case, is totally missing. 9. Reliance is 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." 10. 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. 4. 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." 11. 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. 12. The Hon''ble Apex Court in case titled Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 285, has held as under: "15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ''culpable rashness'' and ''culpable negligence'' into consideration in cases of road accidents. ''Culpable rashness'' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). ''Culpable negligence'' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person''s negligent conduct. [Ref. Justice Rajesh Tandon''s ''An Exhaustive Commentary on Motor Vehicles Act, 1988'' (First Edition, 2010]. 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone''s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as : The event would not have occurred but for someone''s negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. Accused was negligent and owed a duty of care towards the victim." 13. Reliance is also placed on judgment rendered by this Court in State of H.P. vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, relevant para whereof is as under: "4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under section 313 of the Code of Criminal Procedure, 1973 has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on haring the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial. 14. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial. 14. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon''ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgment passed by the learned court below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and as such, same is upheld. Accordingly, the appeal is dismissed being devoid of any merits.