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2017 DIGILAW 172 (HP)

State of Himachal Pradesh v. Parveen Negi

2017-03-15

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal is maintained by the appellant-State of Himachal Pradesh assailing the judgment of acquittal of the accused-respondent (hereinafter to be called as “the accused”), under Sections 279, 337 & 201 of the Indian Penal Code, passed by learned Judicial Magistrate 1st Class, Court No. III, Shimla, District Shimla, H.P. dated 27.02.2007, in Criminal Case No. 42/2 of 2006. 2. Briefly stating facts giving rise to the present appeal, as per the prosecution story are that on 01.01.2006, Sunil Dutt Gautam (hereinafter to be called as “the complainant”) accompanied with his wife were coming from Delhi, at about 10.30 pm, when they reached at Shimla View, near Goel Motors Tara Devi, one pick-up, bearing registration no. HP-25-2017, collided with the Maruti car, bearing registration No. HP-03A-6000. As a result, the complainant sustained injuries. It is alleged that the accused was driving his vehicle in a rash a negligent manner and after the said accident he fled away from the spot. The statement of the complainant under Section 154 Cr.P.C. was recorded, on the basis of which FIR was registered at Police Station, West, Shimla. During investigation the I.O. has prepared the spot map and both the vehicles were taken into possession alongwith documents, vide separate seizure memo. The vehicle of the complainant was handed over to him on sapurdari. Both the vehicles were mechanically examined and after examination, mechanical report was obtained. The injured/complainant was medically examined and MLC was also obtained. 3. Prosecution, in order to prove its case, examined as many as 9 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court acquitted the accused, vide impugned judgment dated 27.02.2007, hence the present appeal. 4. Learned Additional Advocate General appearing on behalf of the appellant-State has argued that learned Court below has committed illegality in acquitting the accused. The impugned judgment of acquittal passed by the learned Court below is perverse and from the material on record, it is clear that the matter was proved beyond reasonable doubt, hence the present appeal is required to be allowed and accused is liable to be convicted of the offence he was charged with. 5. The impugned judgment of acquittal passed by the learned Court below is perverse and from the material on record, it is clear that the matter was proved beyond reasonable doubt, hence the present appeal is required to be allowed and accused is liable to be convicted of the offence he was charged with. 5. On the other hand, learned counsel appearing on behalf of the accused has argued that the accused is innocent and no case against him is made out from the prosecution evidence. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt, so the findings recorded by the learned Court below needs no interference and the appeal deserves to be dismissed. 6. In rebuttal, the learned Additional Advocate General has argued that at 10.30 pm in the month of January, it was not possible to associate any independent witness, the wife of complainant has proved the guilt of the accused and her statement was not considered by the learned Court below in right perspective. The evidence clearly connects the accused with the Commission of the offence, thus the accused may be convicted. 7. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 8. At the very outset, PW-1, Constable Rakesh Kumar, has deposed that on 01.01.2006, the I.O. has taken into possession the vehicle bearing registration No. HP-03A-6000 and HP-25-2017, vide seizure memo Ext. PW-1/A, alongwith documents. He further states that vehicle bearing registration No. HP-03A-6000, was handed over to the complainant on sapurdari, vide seizure memo Ext. PW-1/C. 9. PW-2, complainant, has deposed that on 01.01.2006 he alongwith his wife were coming to Shimla, at about 10.30 pm, when they reached at Shimla View, near Goel Motors Tara Devi, one pick-up, bearing registration No. HP-25-2017, coming from the opposite side hit their vehicle, and he fell unconscious. He further deposed that the accident took place due to rash and negligent driving of the accused, due to which he sustained injuries. This witness was declared hostile. In his cross-examination he has admitted that on the spot of accident there was a sharp curve and there are mechanic shops. He also admitted that on sapurdari, the vehicle was handed over to him. 10. This witness was declared hostile. In his cross-examination he has admitted that on the spot of accident there was a sharp curve and there are mechanic shops. He also admitted that on sapurdari, the vehicle was handed over to him. 10. PW-3, wife of the complainant, has also deposed that accused was driving the vehicle in rash and negligent manner. In her cross-examination she stated that she was not aware who had informed the police. She has admitted that it was dark and on the spot there was a sharp curve. 11. PW-4, Subhash Chander, has mechanically examined the vehicles and prepared his report, Ext. PW-4/A, in his cross-examination, he deposed that the said accident did not took place in his presence. He further deposed that the vehicle bearing registration No. HP-25-2017 was parked in left side of the road. 12. PW-6, Prem Pal, has deposed that he has taken the photographs on the spot, which are Ext. PW-5/A1 to Ext. PW- 5/A5 and negatives are Ext. PW-5/A6 to Ext. PW-5/A10. 13. PW-7, Vijay Kumar, I.O. of the case has deposed that he has recorded the statement of the complainant under Section 154 of Cr.PC, Ext. PW-7, on the basis of which, FIR, Mark- X, was registered. He has taken into possession the vehicle bearing registration No. HP-03A-6000, vide seizure memo Ext. PW-1/A and on sapurdari, handed over the same to the complainant. He also taken into possession vehicle bearing registration No. HP-25-2017 and obtained mechanical report, Ext. PW-4/A. He has prepared the spot map, Ext. PW-7/C. in his cross-examination he deposed that he had received a telephonic message and reached there. He further stated that on the spot there were 10-15 persons, but none of them have been made as witnesses by him. 14. PW-8, Dr. S.S. Negi, has deposed that he medically examined the complainant and found lacerated injury over right side of upper hip, which was bright red in colour and size of the said injury was 1x1 centimeter. He also found linear lacerated over right thigh, bright red in colour, of about 4 centimeter long and half centimeter wide. He issued MLC, Ext. PW-8/A, he opined that all the injuries are simple in nature and can be caused to him by a vehicle. 15. He also found linear lacerated over right thigh, bright red in colour, of about 4 centimeter long and half centimeter wide. He issued MLC, Ext. PW-8/A, he opined that all the injuries are simple in nature and can be caused to him by a vehicle. 15. From the evidence on record, it is clear that I.O. has categorically stated that there were 10-15 persons on the spot and out of those persons, no person was examined by him. The only evidence which has come on record is that the vehicle driven by the accused was in a high speed. There was no obsession that the accused was driving the vehicle in rash and negligent manner. Mere fact that the accused was driving the vehicle in a high speed may not attract the provision of this Section and prosecution has to prove something more. From the evidence on record, 9 witnesses were examined by the prosecution, but PW-2 & PW-3 are only two witnesses who were present on the spot at the time of said accident. PW-2, complainant has specifically admitted that after the accident he fell unconscious. PW-3, wife of the complainant though stated that offending vehicle was driven rashly and negligently, but she again stated that there was curve, so how can her statement be believed in the absence of independent witnesses available on the spot. PW-3, wife of the complainant, is an interested witness and essentially when other independent witnesses were available on the spot they should have been examined. At the same point of time the mechanic has stated that the offending vehicle was parked on the left side of the road. 16. In these circumstances, as there is no evidence on record to say that accused was driving the vehicle in rash and negligent manner. Further there is no evidence on record to connect the accused with the commission of the offence he was charged with and the prosecution has failed to prove the guilt of accused beyond reasonable doubt. 17. 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. 17. 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. 18. 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. 19. So, in the opinion of this Court, when the identity of the accused is not established, the findings of the learned Court below cannot be said to be perverse and against the law, as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. 20. In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending applications, if any, shall also stands disposed of.