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Himachal Pradesh High Court · body

2017 DIGILAW 651 (HP)

State Of Himachal Pradesh v. Ishwar Dass

2017-06-12

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral)By way of this appeal the State has challenged the judgment passed by the Court of learned Addl. Chief Judicial Magistrate, Dehra, Distt. Kangra in Criminal Case No. 38-I/2003/39-II/2003 dated 29.11.2008 vide which learned trial court has acquitted the present respondent for commission of offences punishable under Sections 279, 337 of I.P.C and Section 184 of the Motor Vehicles Act. 2. The case of the prosecution, in brief, was that on 17.7.2002 a telephonic information was received by the police of Police Station, Dehra from Medical Officer, Sub Divisional Hospital, Dehra to the effect that one lady had been brought in an injured condition in the hospital. Thereafter Head Constable Madan Lal along with Constable Ashok Kumar went to the hospital where statement of complainant Sulekha Devi was recorded under section 154 of Cr.P.C., 1973 It was stated by complainant that on the fateful day at around 6:45 a.m. she had gone to Dharamshala in order to purchase certain medicines for her husband on scooter No. CHO-1C-854. As per complainant, she had parked her scooter at a place known as Dehrian from where she had boarded the bus for Dharamshala and returned back to Dehrian at around 1:00 p.m. Thereafter she went to Jawalaji for attending a meeting on her scooter, as she also happened to be BDC Member of Gram Panchayat, Thakurdwara. Further as per complainant while on her way back from Jawalaji to Kariyara at a place known as Kundli Har at around 2:30 p.m. a bus bearing registration No. HP-36-372 came from the opposite side in a high speed which hit her scooter, as a result of which she fell down and sustained injuries on her body. The aforesaid bus was being driven by accused Ishwar Dass and the accident occurred on account of rash and negligent as well as dangerous driving on the part of the accused. After the accident she (complainant) was shifted to Sub Divisional Hospital, Dehra for the purpose of treatment. On the basis of statement so recorded under section 154 of Cr.P.C., 1973 FIR Ext. PW4/A was registered against accused under Sections 279 and 337 of IPC as well as Section 184 of Motor Vehicles Act. After the registration of FIR, investigation was carried out by Investigating Officer. The complainant was medically examined by Dr. Anil Mahajan who vide MLC Ext. PW4/A was registered against accused under Sections 279 and 337 of IPC as well as Section 184 of Motor Vehicles Act. After the registration of FIR, investigation was carried out by Investigating Officer. The complainant was medically examined by Dr. Anil Mahajan who vide MLC Ext. PA gave opinion to the effect that the injuries which were received by complainant were simple in nature. During the course of investigation, the bus involved in the accident was impounded, site plan of the place of occurrence was prepared, scooter of the complainant was also taken into possession and other documents of the bus as well as that of scooter was also taken into possession. Both the vehicles were got mechanically examined from Arun Kumar Sethi and was found to be in order. Statement of witnesses were recorded under section 161 of Cr.P.C., 1973 as per their versions. 3. After the completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly notice of accusation was put to him under Sections 279 and 337 of IPC and Section 184 of Motor Vehicles Act to which he pleaded not guilty and claimed trial. 4. On the basis of material produced on record by the prosecution, learned trial court acquitted the accused of the charged offences by holding that there was no evidence to demonstrate that accused was driving the bus in issue in a rash and negligent manner which caused injuries to the complainant. While arriving at the said conclusion, it was held by learned trial court that merely because complainant had suffered injuries, on this ground alone, it could not be said that accident was deliberate or due to rash and negligent driving on the part of the accused. Learned trial court held that there was nothing on record to infer that accused was driving the bus in question rashly and negligently. It was held by learned trial court that there were material contradictions in the statement of the complainant who entered the witness box as PW1 and the statement of PW2 Attar Singh who was an eye witness as per the prosecution. It was held by learned trial court that there were material contradictions in the statement of the complainant who entered the witness box as PW1 and the statement of PW2 Attar Singh who was an eye witness as per the prosecution. Learned trial court held that prosecution had failed to prove as to what was the actual speed of the bus in issue when the accident took place and merely stating that vehicle was moving in a high speed was not sufficient evidence so as to conclude that there was rashness on the part of the accused. On these bases, it was held by learned trial court that there was no evidence on file to hold the accused guilty of rash and negligent driving, as the prosecution witnesses could not comprehensively and clearly state as to how the accident took place. 5. Feeling aggrieved by the judgment so passed by learned trial court, the State has filed the present appeal. 6. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned court below. 7. Records demonstrate that complainant has entered the witness box as P.W.1. Her statement recorded under Section 154 Cr.P.C., 1973 is on record as Ext. P.W.1/A. In her statement recorded under Section 154 Cr.P.C., 1973 it was mentioned by complainant that on the fateful day at around 1:30 p.m. while she was on her way, on her scooter, from Jawalaji to her residence at Kariyara via Kundli, an HRTC bus bearing registration No. HP-36-372 which was being driven in a high speed came from opposite side and despite her taking her scooter to the extreme left side, the same was hit by the driver of the bus, as a result of which, she fell down from her scooter. She further stated that she had received injuries on the fingers of her right hand as well as on her left shoulder and the accident had taken place on account of rash and negligent driving on the part of the accused. She further stated that she was immediately removed to the hospital at Dehra by local residents. She further stated that she had received injuries on the fingers of her right hand as well as on her left shoulder and the accident had taken place on account of rash and negligent driving on the part of the accused. She further stated that she was immediately removed to the hospital at Dehra by local residents. Complainant gave deposition to the same effect that she entered the witness box as PW1, however, in her cross examination she admitted that the spot where the scooter had fallen down there was a curve and that the road was narrow. Incidentally she accepted the suggestion that she was offered water, at the spot, at the house of Chattar Singh. Now this Chattar Singh who appeared in the witness box as P.W.2 has failed to corroborate the case of the prosecution to the effect that the accident in fact had taken place on account of rash and negligent driving of the accused. A perusal of his testimony in the Court demonstrates that he stated that he has seated in the courtyard when the accident took place, in other words he was not an eye witness who has allegedly seen the actual scene of occurrence. Besides this, there is no other witness examined by the prosecution which could be termed to be an eye witness. Even testimony of P.W.3 who as per the prosecution is also an eye witness does not corroborate the case of the prosecution as P.W.3 Bhup Singh has also not stated that he had seen the actual occurrence of the accident. Therefore in this background, we have to fall back on the testimony of PW1 i.e. the complainant in order to appreciate as to whether the prosecution was able to prove its case against the accused beyond all reasonable doubt that the accident took place on account of the rash and negligent driving on the part of the accused which resulted in simple injuries to the complainant. 8. Incidentally, the doctor who has medically examined the complainant after she was shifted to the hospital after the accident has not been examined by the prosecution. The spot map so prepared by the Investigating Officer has not been exhibited. The Investigating Officer who has entered the witness box as P.W.7 has not been able to corroborate the case of the prosecution. 9. The spot map so prepared by the Investigating Officer has not been exhibited. The Investigating Officer who has entered the witness box as P.W.7 has not been able to corroborate the case of the prosecution. 9. Now as far as the occurrence of accident is concerned, the same is not in dispute. The defence of the accused as is evident from his statement recorded under section 313 of Cr.P.C., 1973 is that he had taken the bus for trial and the complainant in fact had already fallen down in the drain. Photographs of the site which are on record as Ext. P1 to Ext. P3 demonstrate that at the place of occurrence of incident there is a curve and the road is also comparatively narrow. Now except the statement of the complainant that the bus was being driven by accused in a rash and negligent manner there is no other evidence on record form which this inference can be drawn by the court. In these circumstances, the defence taken by the accused especially taking into consideration the photographs of the spot seems to be a probable one. This possibility also cannot be ruled out that when the bus which was being driven by accused came from opposite side, complainant lost her balance and the scooter fell down on account of this. In addition, the respondent/accused already has a benefit of the judgment of acquittal having been passed in his favour by learned trial court. 10. It is settled law that in case there is a judgment of acquittal in favour of an accused, then in appeal, the judgment of acquittal shall not ordinarily be interfered until and unless the judgment of acquittal is perverse and shakes the conscious of the Court. I have gone through the judgment passed by learned trial court as well as the entire record of the case. A perusal of the same demonstrates that the findings returned by the learned trial court while acquitting the accused are fully borne out from the records of the case. Further it cannot be said that findings so returned by learned trial court are perverse or not in consonance with the evidence placed on record by the prosecution. 11. A perusal of the same demonstrates that the findings returned by the learned trial court while acquitting the accused are fully borne out from the records of the case. Further it cannot be said that findings so returned by learned trial court are perverse or not in consonance with the evidence placed on record by the prosecution. 11. A perusal of the evidence placed on record by the prosecution demonstrates that the prosecution has not been able to prove its case beyond all reasonable doubt that the accident in fact took place on account of rash and negligent driving of the accused. Therefore, in this background, the conclusion arrived at to this effect by learned trial court can neither be said to be perverse nor it can be said that the findings returned by the learned trial court are not borne out from the records of the case. 12. Accordingly, as I am of the considered view that the prosecution has failed to prove on record its case beyond all reasonable doubt that accident had taken place on account of rash and negligent driving of the accused. There is no infirmity with the findings returned to this effect by learned trial court, therefore, while upholding the findings so returned by learned trial court this appeal is dismissed being devoid of any merit.