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2017 DIGILAW 656 (HP)

State of Himachal Pradesh v. Lok Raj

2017-06-13

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present criminal appeal, under Section 378 (3) of the Code of Criminal Procedure has been maintained by the State of Himachal Pradesh, against the judgment of acquittal, dated 10.10.2007, in case No. 193-2 of 2004, under Sections 279, 337 and 338 IPC, passed by the learned Sub-Divisional Judicial Magistrate, Rampur Bushahr, District Shimla, H.P. whereby the accused was acquitted for the offence punishable under Sections 279, 337 & 338 of the Indian Penal Code, whereas under Section 196 of the Motor Vehicles Act, the accused was convicted and penalty of Rs. 1,000/- was imposed upon him. 2. The key facts, giving rise to the present appeal as per the prosecution story are that on 06.10.2004, at about 1.30 p.m. at place Mohali, Lok Raj/accused (hereinafter to be called as “the accused”), while driving his pick-up, bearing registration No. HP-10B-0203, from Addu to Nankhari, in a rash and negligent manner and without any valid insurance, collided with the vehicle of the complainant, bearing registration No. DL-3-CH-7597 and caused simple as well as grievous injuries to the complainant Hira Nand, Mahender Singh, Mishru Lal and Bhagata Bahadur. Further the accused was coming from wrong side and the accident has occurred, due to his rash and negligent driving. On the basis of statement of Hira Nand, Ext. PW-1/A, FIR, Ext. PW-5/D was registered at Police Station, Rampur and during the course of investigation site map, Ext. PW-5/A was prepared. The offending vehicle, alongwith its documents was taken into possession vide seizure memo, Ext. PW-5/B. The broken pieces of mirror of Maruti car were also taken into possession, vide seizure memo, Ext. PW-5/C. The injured were got medically examined and their MLCs, Ext. PA to Ext. PD, were obtained. Both the vehicles were got mechanically examined and their examination reports Ext. PF and Ext. PW-3/A were obtained. Photographs of the vehicles Mark-A, Mark-B and Mark D-1 were clicked. Statements of the witnesses under Section 161 Cr.P.C. were recorded and after completion of investigation, challan was presented in the Court. 3. Prosecution, in order to prove its case, examined as many as 7 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. 3. Prosecution, in order to prove its case, examined as many as 7 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, vide impugned judgment dated 10.10.2007, acquitted the accused for the commission of offences punishable under Sections 279, 337 and 338 IPC, whereas he was convicted under Section 196 of the Motor Vehicles Act, hence the present appeal. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. Learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt as the accused was driving the vehicle in middle of the road. To support his contentions, he has relied upon spot map Ext. PW-5/A, photographs, Mark A and B of the spot and statements of PW-1 and PW-2. On the other hand, learned defence counsel has argued that the vehicle of the accused was going towards the uphill side and the photographs Mark A, B and D-1, clearly shows that it was the vehicle of the complainant, which was descending in high speed, and it is specifically proved from photograph, Mark D-1, so the well reasoned judgment of the learned Court below needs no interference. In rebuttal, learned Additional Advocate General has argued that learned trial Court has not appreciated the evidence to its true perspective and present is a fit case where the judgment of acquittal requires to be set aside and accused be convicted for the commission of offences punishable under Section 279, 337 and 338 IPC also. 6. 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. 7. PW-1, complainant, while appearing in the witness box, has deposed that on 06.10.2004, he boarded a Maruti Car from Nankhari and Mahender Singh alongwith two other persons were also sitting in the Car, they were coming from Narkanda and when they reached at Mohali, in the day time around 1.30 p.m., a pick-up, being driven by the accused in rash and negligent manner, hit their vehicle. He further deposed that the vehicle Maruti Car was on its left hand side and the accused hit it while driving his vehicle on the right side of the road. He stated that even after the accident, other vehicles were passing from the left side of the offending vehicle. In his cross-examination, he has stated that there was a curve at the place of accident. He denied that that there was an ascent, however he admitted that it was a slight ascent. He further stated that Mahender Singh is driving a car from last one year. He feigned ignorance with regard to the fact that the pick-up was loaded. He has denied that the complainant was driving the vehicle in a rash and negligent manner. He further denied that the accident has taken place due to breakage of main leaf of the offending vehicle. 8. PW-2, Misru Ram, has deposed that on 06.10.2004, when they were coming from Narkanda to Nankhari, in a vehicle being driven by Mahender Singh, in which Hira Nand and Bhagata Bahadur were also sitting and they reached at Mohali, the offending vehicle came from the wrong side in fast speed and hit their Maruti car. He further deposed that their Maruti car was on the left side and the accused hit it while driving his vehicle on the right side of the road, due to said accident, the occupants of the Maruti car received injuries and vehicle was damaged. He stated that the accident has occurred due to negligence of driver of the offending vehicle. He further stated that on the left side of the offending vehicle, there was 4 feet road. In his cross-examination he admitted that the offending vehicle was ascending upwards. He has stated that it was single way traffic road. He has denied that Mahender Kumar was driving the Maruti car in rash and negligent manner that resulted into accident. 9. PW-3, HC, Gian Chand, has got conducted the mechanical examination of Maruti car and gave report Ext. PW-3/A. In his cross-examination he admitted that in Ext. D- 1, there were tyre marks of Maruti car on the road. He further admitted that the vehicle was driven in fast speed and if one applies the brakes quickly, the tyre marks can come on road. 10. PW-4, Kedar Singh, clicked the photographs on the spot. PW-3/A. In his cross-examination he admitted that in Ext. D- 1, there were tyre marks of Maruti car on the road. He further admitted that the vehicle was driven in fast speed and if one applies the brakes quickly, the tyre marks can come on road. 10. PW-4, Kedar Singh, clicked the photographs on the spot. PW-5, HC, Dharam Pal, Investigating Officer, who investigated the matter and taken into possession the offending vehicle, alongwith its documents vide seizure memo, Ext. PW-5/B. The broken pieces of mirror of Maruti car were also taken into possession, vide seizure memo, Ext. PW-5/C. The injured were got medically examined and their MLCs, Ext. PA to Ext. PD, were obtained. In his cross-examination he denied that the accident has occurred due to breakage of main leaf of the vehicle. He further denied that pick-up was on its right side. 11. From the above, it is clear that there is nothing which has come on record against the accused, with respect to rash and negligent driving. Further at the same point of time, the identity of the accused has not been established, as PW-1 and PW-2 cannot say that it was the accused, who was driving the vehicle in rash and negligent manner. PW-2, has also admitted that at the place of accident, there was a sharp curve. PW-3, has also admitted the tyre marks of the Maruti car. Further it has nowhere come of record that Mahender Singh driver of the Maruti car was having a valid driving licence. After going through the spot map, it cannot be said that accused was found driving the vehicle on wrong side in a rash and negligent manner. Thus, testimony of PW-1 and PW-2 is unreliable. According to PW-1, the vehicle of the accused was coming upwards and as per Site plan, Ext. PW-5/A and photographs Mark-A, Mark-B and Mark D-1, indicates that accident has occurred due to error of judgment. So, it cannot be said that the accused was driving the vehicle in rash and negligent manner. There is no dispute about the fact that the complainant and other person received injuries, however it has not been proved that they received injuries due to rash and negligent driving of the accused. 12. Further it has come on record that the accused has produced on record the mechanical report of his vehicle, Ext. There is no dispute about the fact that the complainant and other person received injuries, however it has not been proved that they received injuries due to rash and negligent driving of the accused. 12. Further it has come on record that the accused has produced on record the mechanical report of his vehicle, Ext. PF, in which main leaf of the vehicle was found broken. In the present case the Doctor was not examined to prove the injuries. All these things goes to show that prosecution has failed to proved the guilt of the accused, under Sections 279, 337 and 338 IPC, beyond the shadow of reasonable doubt and in these circumstance, acquittal of the accused need no interference. 13. 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. 14. 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. 15. 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.