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2017 DIGILAW 669 (HP)

State of Himachal Pradesh v. Rakesh Thakur

2017-06-14

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the State of Himachal Pradesh against the judgment of acquittal rendered on 16.9.2008 by learned Judicial Magistrate, 1st Class, Kandaghat, District Solan, H.P. in criminal case No. 12/2 of 2006 embodying therein offences punishable under Sections 279, 337,338, 304-A of the Indian Penal Code and under Section 187 of the Motor Vehicles Act. 2. The facts relevant to decide the instant case are that on 17.4.2006 at about 9:20 a.m. one information has been received in the Police Station, Kandaghat that an accident has taken place near Destination Hotel. On this information ASI Rupender Kumar along with Constable Bali Ram visited the place of occurrence. On enquiry, it was found that the driver of the truck No. HP-51-1256 was driving the truck in rash and negligent manner and was going from Shimla to Solan and scooter No. HP-14-A-2156 which was being driven by Dev Raj was going from Solan to Shimla. Dev Raj was with his daughter Lata Sharma. The scooter was hit by the truck in question from wrong side, due to which Dev Raj Sharma and his daughter Lata Sharma sustained grievous injuries. The injured were taken to hospital at Kandaghat and thereafter they were referred to Zonal Hospital, Solan for further medical aid. From Zonal Hospital, they were referred to PGI, Chandigarh. In the way Dev Raj succumbed to his injuries and he was brought back to Zonal Hospital Solan, where post mortem of his dead body was conducted and police obtained the post mortem report. The accident is claimed to have taken place due to the rash and negligent driving of truck No. HP-51-1256 by the accused. During the investigation, police prepared spot map. MLC of injured Lata Sharma with respect to injuries sustained by her on her person was obtained by the police. The truck and scooter along with their documents were taken into possession in presence of witnesses. The vehicles met with an accident, were subjected to mechanical examination and police procured mechanical reports in this regard. The accused was arrested and later on released after furnishing personal and surety bonds. The statements of witnesses acquainted with the fact of the case were recorded as per their versions. The vehicles met with an accident, were subjected to mechanical examination and police procured mechanical reports in this regard. The accused was arrested and later on released after furnishing personal and surety bonds. The statements of witnesses acquainted with the fact of the case were recorded as per their versions. On completion of investigation and being satisfied of the commission of offence punishable under Sections 279, 337, 338, 304-A of IPC and 187 of M.V. Act by the accused, the officer-in-charge of the concerned police station submitted the chargesheet against him. 3. On conclusion of the investigations, 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, 304-A IPC and 187 of M.V. Act. In proof of the prosecution case, the prosecution examined 15 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 in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein. 6. In sequel to the collision which occurred inter-se the scooter, whereon the victim/deceased was atop, vis-à-vis, the truck purportedly driven by the accused/respondent, the former, as unraveled by the apposite post-mortem report, comprised in Ext. PW11/B, suffered his demise, in sequel to the injuries which he in the aforesaid collision sustained on his person. The learned Additional Advocate General has made a mounted assault upon the efficacy of findings recorded by the learned trial Magistrate, wherein she proceeded to dispel the identity of the accused/respondent, besides his involvement in the ill-fated collision, merely on anvil of the Investigating Officer omitting to ensure the holding of a valid Test Identification Parade, in quick promptitude to the ill-fated collision, whereas on its being conducted, it would have ensured an efficacious identification of the accused. He contends that the efficacy of the aforesaid findings, is sufficiently overcome by PW-1, emphatically voicing in her un-eroded testification, comprised both in her examination –in-chief besides in her cross-examination, that she had overheard one amongst 2-3 persons, available at the site of occurrence, uttering the name of the accused, hence hers leaning to name him in her apposite statement, thereupon concomitantly the prosecution establishing to the hilt, the identity of the accused/respondent, besides its also emphatically proving his involvement in the ill-fated collision. However, the aforesaid submission addressed before this Court by the learned Additional Advocate General, suffers enfeeblement, in the apparent light of the FIR, which stood recorded in immediate sequel to the ill-fated collision, omitting to detail therein, the name of the accused. Moreover, the recitals occurring in the FIR, wherein solitarily the number of the offending vehicle stands recited, stood hinged upon Ext. PW6/A, exhibit whereof comprises a communication made by an anonymous person, to the Police Station concerned, wherein also the name of the accused/respondent remains un-communicated. The testification of PW-1, wherein she has articulated the name of the accused/respondent, to be the person driving the offending truck, is anchored upon her previous statement recorded in writing by the Investigating Officer concerned. However, for the previous statement recorded in writing of PW-1 by the Investigating Officer, in consonance wherewith, she testified in Court with respect to the identity of the accused/respondent, to hold immense probative formidability she stood enjoined to, in prompt sequel to occurrence, hence reveal to the Investigating Officer concerned, the name of the accused, “unless” there were strong pressing medical constraints operating upon her, whereupon she stood precluded to, at the earliest, to make a statement to the Investigating Officer concerned, with respect to the identity of the accused. Hereat, it is imperative to observe, that there are no reflections in the apposite MLC, that given the injuries, observed by the examining Doctor to be existing on her person, she hence was dis-oriented or was unfit to, in prompt sequel to the ill-fated collision, make an apposite statement to the Investigating Officer concerned. Hereat, it is imperative to observe, that there are no reflections in the apposite MLC, that given the injuries, observed by the examining Doctor to be existing on her person, she hence was dis-oriented or was unfit to, in prompt sequel to the ill-fated collision, make an apposite statement to the Investigating Officer concerned. Moreover, with PW-1 also in her deposition comprised in her cross-examination, voicing that immediately subsequent to the ill-fated accident, she was fully conscious, besides with PW-3 also deposing that PW-1 was in a fit and conscious state of mind, cumulatively constrain a conclusion, that PW-1 despite in immediate sequel to the ill-fated accident, hence holding a fit mental condition, hers not revealing the name of the accused to the Investigating Officer concerned, rather hers belatedly revealing his name to the Investigating Officer, that thereupon the identity of the accused is shrouded in an aura of suspicion, benefit whereof ought to be given to the accused. Apart therefrom, dehors the fact that there was a delay on the part of PW-1 to reveal the identity of the accused, to the Investigating Officer concerned, however the fact that she has, in her cross-examination, made a disclosure that she overheard one amongst two or three persons available at the site of accident, uttering the name of accused/respondent, whereupon she was led to make a statement with respect to the involvement of the accused in the ill-fated collision also constrains a conclusion that despite PW-1, immediately subsequent to the ill-fated collision, hence overhearing the uttering of the name of accused/respondent, also hers thereat possessing a fit mental condition, hers withholding his identity up till 21.4.2006, firmly foreclosing an inference that PW-1 in collusion with the Investigating Officer, has conjured the identity of the accused/respondent. Conspicuously, also when one amongst 2-3 persons available at the site of occurrence was not associated by the Investigating Officer, in his holding an incisive investigation for his thereupon unearthing potent evidence with respect to the identity of the accused, whereas it constituted the best evidence for succoring the testification made by PW-1 in the aforesaid regard, also begets an inference that the statement of PW-1, wherein she names the accused to be involved in the accident, is entirely a contrivance, for falsely implicating the accused. 7. 7. The learned trial Magistrate had hence meted appropriate reverence to the omission of the Investigating Officer concerned, to hold a valid Test Identification Parade, for hence firmly establishing the identity of the accused. Consequently, the finding recorded by the learned trial Magistrate, that in the light of the aforesaid relevant omission of the Investigating Officer, the identity of the accused/respondent hence remained not firmly established, whereupon it was coaxed to record findings of acquittal upon the accused, also obviously do not warrant any interference from this Court. 8. At this stage, the learned Additional Advocate General has, on anvil of Exts. PW4/A and PW4/B, made a vigorous attempt for establishing the factum of involvement of the offending vehicle in the relevant accident. Also he has depended upon the testification of the GPA of the owner of the offending vehicle, as occurrs in his cross-examination conducted by the APP concerned, on his being declared hostile, wherein he has deposed that he was well-acquainted with the identity of the accused, given his belonging to his village, thereupon he canvasses that the prosecution has hence efficaciously proven the factum of the accused driving the offending vehicle at the relevant time. However, the mere factum of the prosecution succeeding to establish the factum of the involvement of the offending vehicle in the relevant accident, also the GPA of the owner of the offending vehicle, in his cross-examination, to which he stood subjected to by the learned APP concerned, on his standing declared hostile, making a statement with respect to the identity of the accused/respondent, also with respect to his driving the offending vehicle at the relevant time, would not relieve the prosecution of its enjoined duty, to firmly establish the identity of the accused/respondent or to also firmly establish the factum of his occupying the steering wheel of the vehicle, at the time when it collided with the scooter, whereon the deceased was atop, conspicuously when the GPA of the owner of the offending vehicle did not produce the relevant documents, with respect to the employment of the accused as a driver in the offending vehicle. The prosecution was hence enjoined to discharge the burden of proving to the hilt the identity of the accused/respondent, burden thereof would stand efficaciously discharged, only when the best evidence with respect to the identity of the accused/respondent stood adduced by the prosecution, best evidence whereof stood comprised in the “log book” seized by the Investigating Officer standing proven to be scribed/authored by the accused/respondent. Pre-dominantly, when the accused had canvassed a defence that he was not, at the relevant time, occupying the steering wheel of the offending vehicle. However, the prosecution has merely tendered in evidence “the log book”, obviously it has not solicited the opinion of the handwriting expert concerned, with respect to the authorship of writings occurring in the log book nor obviously it has established that the writings occurring in the log book standing authored by the accused/respondent, whereas it constituted the best evidence with respect to the identity of the accused, besides with respect to his occupying the steering wheel of the offending vehicle at the time when the ill-fated collision occurred. Suppression of best evidence aforesaid, garners an inference that the prosecution has failed to establish the identity of the accused. 9. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 10. Consequently, there is no merit in the instant appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.