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2017 DIGILAW 675 (HP)

State Of Himachal Pradesh v. Narinder Kumar

2017-06-14

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. By way of this appeal the State has challenged the judgment passed by the Court of learned Judicial Magistrate 1st Class, Kandaghat,District Solan in Criminal Case No. 52/2 of 2003 dated 12.12.2007 vide which learned trial court has acquitted the present respondent for commission of offences punishable under Sections 279, 337, 304(A) of IPC and Sections 185, 113/190(3) of the Motor Vehicles Act. 2. The case of the prosecution, in brief, was that on 14.3.2003 telephonic information was received by the police of Police Station, Kandaghat that one truck of Public Works Department (PWD) had met with an accident at Chhousha. On the receipt of said information, police visited the spot where complainant Kultar Chand recorded his statement to the effect that he was working as a Supervisor with HP PWD and on the aforesaid date he was travelling in truck bearing registration No. HP-14- 7190 along with labourers towards Chhousha from Kandaghat. The truck in issue was being drive by Narinder Kumar. At around 5:40 p.m. the said truck went out of control and fell down into a gorge about 25-30 feet, as a result of which, one labourer Gopi Ram died on the spot whereas another labourer Madan Lal died in the hospital. Remaining 14-15 labourers sustained injuries and as per the complainant accident took place due to rash and negligent driving on the part of the accused. 3. On the basis of the said complaint FIR, Ext. PW20/A, was lodged. The investigation was carried out and injured persons were taken to the hospital and M.L.Cs of injured were obtained. Post-mortem reports of dead labourers were also obtained. Mechanical examination of the ill-fated truck in issue was undertaken. Statements of witnesses were recorded under section 161 of Cr.P.C., 1973 4. After the completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for commission of offences punishable under Sections 279, 337, 304(A) of IPC to which he pleaded not guilty and claimed trial. 5. Learned trial court vide its judgment dated 12.12.2007 acquitted the accused by holding that none of injured persons who had deposed in the Court had attributed the accident to rash and negligent driving of the accused. 5. Learned trial court vide its judgment dated 12.12.2007 acquitted the accused by holding that none of injured persons who had deposed in the Court had attributed the accident to rash and negligent driving of the accused. Learned trial court held that most of the witnesses had deposed that they heard noise of something breaking before the accident took place. Learned trial court also held that the defence taken by accused was that accident took place on account of breaking of steering shaft which got locked before the accident. It was further held by learned trial court that as far as the contention of prosecution that the accused was under the influence of liquor was concerned, his MLC Ext. PW13/Q demonstrated that doctor had mentioned that though the accused had consumed alcohol but he was not intoxicated. On these bases it was held by learned trial court that prosecution had failed to prove that the truck in issue was being driven by accused in a rash and negligent manner after consuming liquor and the accident took place due to the fault of the accused. Accordingly, learned trial court acquitted the accused. 6. Feeling aggrieved by the judgment so passed by learned trial court, the State has filed the present appeal. 7. 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. 8. In the present case, the respondent/accused already has the benefit of a judgment of acquittal passed in his favour by the learned trial Court. It has been held by Hon''ble Supreme Court in Mohammed Ankoos and Others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 Supreme Court Cases 94. "12. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under sections 378 and 386, Cr.P.C., 1973 It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 shall suffice wherein this Court considered a long line of cases and held thus : "69. The following principles emerge from the cases above: 1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court''s conclusion with respect to both facts and law. 2. The accused is presumed innocent until prove guilty. The accused possessed this presumption when (2008) 10 SCC 450 he was before the trial court. The trial court''s acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court''s decision. This is especially true when a witness'' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. 70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court''s acquittal: 1. The appellate court may only overrule or otherwise disturb the trial Court''s acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the 5 appellate court would have "very substantial and compelling reasons" to discard the trial court''s decision. The appellate court may only overrule or otherwise disturb the trial Court''s acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the 5 appellate court would have "very substantial and compelling reasons" to discard the trial court''s decision. "Very substantial and compelling reasons" exist when: (i) The trial court''s conclusion with regard to the facts is palpably wrong; (ii) The trial court''s decision was based on an erroneous view of law; (iii) The trial court''s judgment is likely to result in "grave miscarriage of justice" (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court''s judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused." 9. In State of Himachal Pradesh v. Kahan Chand, 2016 (1) Drugs Cases (Narcotics) 576, this Court has held as under:- "19. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohamed Ankoos and others v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged." 10. Taking into consideration the parameters of law laid down above I will deal with the present appeal. 11. In order to prove its case prosecution, in all, examined 20 witnesses. P.W.1-Kultar Chand is the complainant. In his cross-examination he has admitted it to be correct that immediately before the accident took 6 place a loud noise had come from the vehicle. 11. In order to prove its case prosecution, in all, examined 20 witnesses. P.W.1-Kultar Chand is the complainant. In his cross-examination he has admitted it to be correct that immediately before the accident took 6 place a loud noise had come from the vehicle. He also stated in his cross examination that the vehicle was being driven uphill and it was being driven at a normal speed. 12. P.W.3 Narayan Singh, P.W.4 Ved Parkash, P.W.5 Kalawati, P.W.6 Devi Ram, P.W.8 Kamla Devi, P.W.9 Ajay, P.W.10 Ram Chand and P.W.11 Mangat Ram were all labourers who were travelling in the ill-fated truck. 13. P.W.3 in his cross-examination has admitted that before the accident took place a loud noise was heard. He also admitted that the vehicle was being driven uphill and it was being driven at a slow speed. PW4 Ved Parkash also in his cross-examination has deposed to the effect that immediately before the accident a loud noise was heard and the vehicle was being driven in uphill in a slow speed. The statement of remaining prosecution witnesses who were also travelling in the ill-fated truck is also to the same effect that immediately before the accident took place a loud noise was heard and further that the ill-fated truck was being driven uphill and it was being driven at a normal speed. Now in these circumstances, in my considered view there is no perversity with the findings which have been returned by learned trial court to the effect that there was no material produced on record by the prosecution from which it could be inferred that accident took place on account of rash and negligent driving of the accused. Thus perusal of the evidence placed on record by the prosecution discussed above 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. There is on record mechanical report of the truck which is Ext. PW2/A. The mechanic who had examined the bus in question entered the witness box as PW2. A perusal of the cross examination of PW2 demonstrates that the manner in which he conducted the mechanical examination of the vehicle in issue as is reflected from the cross examination of the said witness does not inspire confidence. PW2/A. The mechanic who had examined the bus in question entered the witness box as PW2. A perusal of the cross examination of PW2 demonstrates that the manner in which he conducted the mechanical examination of the vehicle in issue as is reflected from the cross examination of the said witness does not inspire confidence. In these circumstances, the mechanical report which has been submitted by him in my considered view cannot be blindly relied upon. Now as I have already mentioned above, the labourers who were travelling in the ill-fated bus as well as complainant in unison have stated that immediately before the accident took place they heard a noise as if something had broken in the vehicle. Besides this, said witnesses have also in unison deposed that the vehicle was being driven uphill and it was being driven in a slow speed. As I have already mentioned above the mechanical report of the ill-fated truck does not inspire confidence. Medical examination of the accused demonstrates that though he was under the influence of liquor but he was not intoxicated. This is evident from Ext. PW13/Z which is the MLC of the accused. A perusal of the statement of Dr. Anadi Gupta who has entered the witness box as PW13 demonstrates that it has not come in his statement that the medical examination of the accused demonstrates that he was intoxicated and thus not in a position to drive a vehicle. There is also on record statement of DW-1-Chain Singh who stated that he was working as a technician with PWD department since 1.1.1989. He has further deposed that he was deputed by the department to recover and bring the truck bearing registration No. HP14-7190 from the accident spot and when he reached the spot, on checking he found that the steering shaft of the vehicle was not working. He also stated that the steering wheel was free and that steering shaft had broken as it was old. In his cross examination prosecution could not elicit anything from him to the contrary. 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 learned trial court are not borne out from the records of the case. In his cross examination prosecution could not elicit anything from him to the contrary. 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 learned trial court are not borne out from the records of the case. Otherwise also, I have independently after perusing the evidence on record concluded that there was no material on record placed by prosecution from which it could be inferred that accident in fact took place on account of rash and negligent driving of he accused who was under the influence of liquor. 14. As discussed above, 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. 15. Therefore, as there is no infirmity with the judgment of acquittal passed by the learned trial Court, this Court while concurring with the findings so returned by the learned trial Court, dismisses this appeal being devoid of merit. Pending miscellaneous application(s), if any, also stands disposed of.