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2017 DIGILAW 321 (HP)

State of H. P. v. Narender Chand

2017-04-07

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the State of Himachal Pradesh against the judgment rendered on 04.12.2007 by the learned Judicial Magistrate 1st Class, Court No. III, Hamirpur, H.P. in Police Challan No. 60-1-2005, RBT 2-II-05, where by, he acquitted the accused for his allegedly committing offences punishable under Sections 279, 337, 338 and 304-A of the IPC. 2. The facts relevant to decide the instant case are that on 2.7.2004 an information was received at police station, Hamirpur about accident having taken place near Jhaniari on Nadaun road and that injured had been brought to Zonal Hospital, Hamirpur. In the hospital, complainant Ranjit Singh Rana, got his statement recorded under Section 154 of the Cr.P.C., where by he unfolded that on 2.7.2004, he had started from Shimla to his village and the car was being driven by him. His friend L.R. Rana and wife Tripta Rana were also travelling along with him. At about 4.45 p.m near Jhaniari, Dinesh Bus No. HP-55-4390 came from the opposite side and struck against his car. Because of the impact his friend Lekh Ram Rana died whereas he along with his wife got injured. The accident stated to have taken place due to the rash and negligent driving of the bus by its driver. On the aforesaid statement of the complainant, FIR was registered in the police station concerned. Thereafter, the Investigating Officer concerned completed the codel formalities. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused stood charged by the learned trial Court for his committing offences punishable under Sections 279, 337, 338 and 304-A of the IPC. In proof of the prosecution case, the prosecution examined 13 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court in which the accused claimed innocence and pleaded false implication. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent here in. 6. The State of H.P. stands aggrieved by the judgment of acquittal recorded in favour of the accused/respondent by the learned trial Court. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent here in. 6. The State of H.P. stands aggrieved by the judgment of acquittal recorded in favour of the accused/respondent by the learned trial Court. The learned Deputy Advocate General for the State has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the accused/respondent herein has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned trial Court standing based on a mature and balanced appreciation by him of the evidence on record and theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. In a collision which occurred inter se the bus driven by the accused/respondent vis-a-vis the car driven by the complainant, an occupant in the latter vehicle, as divulged by postmortem report comprised in Ex.PW8/C, suffered his demise, on account of injuries reflected therein, befalling upon him. Also the complainant suffered on his person injuries as stand reflected in MLC Ex.PW8/B besides his wife also suffered injuries on her person, injuries whereof stand borne on Ex.PW8/A. 10. The learned trial Court had proceeded to pronounce findings of acquittal upon the accused/respondent, on anvil of a purported eye witness to the occurrence, one Sh. Jagdish Chand, PW- 6, benumbing in his testification ascriptions of negligence vis-a-vis the accused, as comprised in the charge, where upon, the accused/respondent faced trial, contrarily, he attributed negligence upon the complainant, comprised in his disclosing qua his driving the relevant car on the inappropriate site of the road. Jagdish Chand, PW- 6, benumbing in his testification ascriptions of negligence vis-a-vis the accused, as comprised in the charge, where upon, the accused/respondent faced trial, contrarily, he attributed negligence upon the complainant, comprised in his disclosing qua his driving the relevant car on the inappropriate site of the road. He also voiced in his testification qua bus bearing No. HP-55-4390 standing driven by the accused on the appropriate side of the road besides has echoed therein qua despite the utmost strenuous efforts made by the accused/respondent to forestall the ill-fated collision, comprised in his maneuvering the relevant bus to the katcha portion of the road, yet not ensuring its obviation given, the enormous speed at which the complainant was plying his car on the inappropriate side of the road. 11. The efficacy of the aforesaid testification purveyed qua the occurrence by PW-6, is to be tested by making an allusion to the relevant unfoldments borne on site plan embodied in Ex.PW12/A. A wholesome reading of the deposition of PW-12, who prepared site plan borne on Ex.PW12/A, unfolds qua his preparing it at a stage when the positions of the relevant vehicles stood disturbed, for hence facilitating the smooth plying of vehicles on the road whereat the ill-fated collision occurred, thereupon, the reflections embodied in Ex.PW12/A do not prima facie warrant qua implicit reliance standing placed thereupon for, hence, concluding the trite factum qua whether the bus or the car stood plied on the inappropriate or the appropriate side of the road. However, the learned Deputy Advocate General submits that with reflection occurring at serial No.4 of Ex.PW12/A qua broken pieces of glasses finding their existence on the middle of the road, thereupon, with the aforesaid portion of the road constituting the appropriate portion of the road vis-a-vis the car, thereupon, it naturally constituting the inappropriate portion of the road for the plying thereon of the bus driven by the accused/respondent where upon the charge qua the accused stands proven. Nowat, it is to be determined whether the glasses of the car or of the bus suffered breakage, arising from the impact of the collision which occurred inter se both. Nowat, it is to be determined whether the glasses of the car or of the bus suffered breakage, arising from the impact of the collision which occurred inter se both. A perusal of the photographs unveils qua the window panes besides the front glasses of the car suffering breakage, whereas, the glasses of the bus apparently did not suffer any damage nor they got broken, corollary whereof is qua the occurrence, on the middle of the road, of pieces of glass, hence, warranting a conclusion qua theirs comprising the broken glasses of the car, breakage whereof occurred, in sequel to the impact of a collision which occurred thereat inter se the bus and the car. Since, the place denoted as 'X' in Ex.PW12/A stands concluded to be the site whereat the accident occurred also with its constituting the appropriate side of the road for the plying thereon of the car driven by the complainant besides its constituting the inappropriate side of the road for plying thereon of the bus driven by the respondent/accused, yet the mere occurrence of glasses at point 'X' in Ex.PW12/A stands contended by the learned counsel for the accused/respondent, to not constrain this Court to conclude qua its constituting the site of collision which occurred inter se the car and the bus. Nonetheless, the aforesaid submission is inefficacious, significantly, when with at the time contemporaneous to the preparation of Ex.PW12/A, the position of the vehicles stood disturbed also with accused/respondent while holding the prosecution witnesses to cross-examination, his merely suggesting them to qua on account of rain fall, the broken glasses of the car finding their existence at point 'X' in Ex.PW12/A. Consequently, the aforesaid stray suggestions unaccompanied by best evidence comprised in the adduction of photographic evidence by the defence witnesses, with portrayals therein qua the occurrence of glasses at point “X”, owing their existence thereat owing to heavy rainfall, yet the aforesaid evidence stood unadduced, whereupon, this Court is constrained to conclude qua the aforesaid endeavour of the defence for benumbing the incriminatory role of the accused/respondent, hence, holding no efficacy. In sequel, this Court on anvil of mark 'X' depicted in site plan Ex.PW12/A concludes qua it constituting the site of occurrence also when it constituted the appropriate site of the road for plying thereon of the vehicle driven by the complainant besides its constituting the inappropriate side of the road vis-a-vis the plying thereon of the bus driven by the accused/respondent, thereupon, the testification of PW-6, wherein he omits to lend succor to the prosecution case, does not hold the apposite creditworthiness, his testification vis-a-vis the defence of the accused/respondent ensuing from his holding inclinations vis-a-vis him, inclination vis-avis the accused stemming from his being his employer. Also with the evident arrival at the site of occurrence, of PW-6, being subsequent to the relevant collision taking place thereat thereupon his purportedly, rendering an ocular version qua the occurrence does not hold any credi worthiness. 12. The learned trial Court had pronounced an order of acquittal upon the accused/respondent, on the anvil of the complainant revealing the identity of the accused to be one Naresh, whereas the name of the accused/respondent being Narender Chand. However, the aforesaid prime factum is not sufficient to conclude qua the prosecution not succeeding in establishing the factum of the accused/respondent occupying the drivers seat of the bus, especially when, the complainant had identified the accused/respondent in Court besides when the best evidence to succor the defence of the accused/respondent qua his not holding the apposite employment under the owners of the bus, stood comprised in the learned defence counsel putting apposite suggestion to PW-6, the owner of the offending bus, holding communications in repudiation to his not holding the relevant employment under him, where as, his omissions to put the apposite suggestions to PW-6 constrains this Court to conclude qua his thereupon acquiescing qua hence the accused also acquiescing qua his holding the apposite employment as a driver in the relevant bus under PW-6 also his thereupon acquiescing qua his at the relevant time manning the driver's seat of the relevant bus. Moreover, the learned defence counsel throughout during the course of his holding the prosecution witnesses to cross-examination nor in his statement recorded under Section 313 Cr.P.C., has made any disclosure therein qua his not holding the driving licence for driving the category of the vehicle where within the relevant bus fell or his not holding the relevant employment under its owner rather his holding employment under some other person, thereupon also it is befitting to conclude qua the prosecution establishing the identity of the accused/respondent. 13. For the reasons which have been recorded here in above, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart there from the analysis of the material on record by the learned trial Court suffers from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 14. Consequently, the instant appeal is allowed and the impugned judgment is set aside. In sequel, the accused/respondent is convicted for his committing offences punishable under Sections 279, 337, 338 and 304-A of the IPC. The accused/convict/respondent be produced before this Court on 28.04.2017 for his being heard on the quantum of sentence.